Case: 1:17-cv JG Doc #: 84 Filed: 12/04/18 1 of 8. PageID #: 1038 IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF OHIO EASTERN DIVISION

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1 Case: 1:17-cv JG Doc #: 84 Filed: 12/04/18 1 of 8. PageID #: 1038 IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF OHIO EASTERN DIVISION STEPHANIE LYNN STEIGERWALD on behalf of herself and the class, v. Plaintiffs, NANCY A. BERRYHILL, ACTING COMMISSIONER OF SOCIAL SECURITY, ET AL. Defendants. CASE NO.: 1:17-CV-1516 JUDGE JAMES S. GWIN NOTICE Pursuant to the Court s oral Order at the November 20, 2018 status conference held before His Honor, Class Counsel hereby provides the following information: (1 As of December 3, 2018, 70 class members have written to opt out of the class pursuant to the terms of the Class Notice. (2 As reported on December 3, 2018 to Class Counsel by our vendor, KCC, of the 129,859 mailings of the Class Notice, 8,791 have been returned by the U.S. Postal Service as undeliverable. On December 4, 2018 Class Counsel forwarded to Defendants counsel, for further investigation and action, the list of names of individuals whose mail has been returned as undeliverable. (3 Also as reported by KCC on December 3, 2018, an additional 1,345 mailings of the Class Notice sent to class members were forwarded by the Postal Service to new addresses of those class members. (4 Also as reported by KCC on December 3, 2018, so far there have been 3,457 visitors to the class action information website,

2 Case: 1:17-cv JG Doc #: 84 Filed: 12/04/18 2 of 8. PageID #: 1039 (5 As of December 1, 2018, Class Counsel has received phone calls from over 130 individuals inquiring about this case. In addition, Class Counsel has received more than 90 written communications (mostly communications via U.S. Postal Service, and in some cases via relating to the case. Class Counsel is in the process of returning each call we receive, as well as responding through phone calls or by mail to class members who have written to seek further information or who have asked specific questions. To date, Class Counsel attorneys have called, spoken with, left messages for, and/or ed almost 150 people, and have sent written information through the U.S. Postal Service to 15 more. In the written communications mailed via the Postal Service, Class Counsel has included the Court s decisions in denying Defendants Motion to Dismiss and in granting class certification together with a card from one of Class Counsel s attorneys notifying the letter recipient that s/he may contact the attorney directly if s/he has any questions. (6 At the November 20 status conference, Class Counsel reported that many class members had been asking whether they could possibly lose money and/or benefits by remaining in the class. The Court instructed Defendants to provide Class Counsel an answer to this question. After the status conference, Class Counsel also requested that Defendants confirm that class members benefits would not be negatively affected by the performance of the Subtraction Recalculation itself. Class Counsel reached out to Defendants counsel by phone last week and by on December 3, Here are Class Counsel s December 3rd and Defendants December 3rd and 4th responses: 2

3 Case: 1:17-cv JG Doc #: 84 Filed: 12/04/18 3 of 8. PageID #: 1040 From: Stern, Bezalel Sent: Monday, December 03, :06 AM To: 'Brizius, Erin E. (USAOHN' <Erin.E.Brizius2@usdoj.gov>; Asher, Ruchi (USAOHN <Ruchi.Asher@usdoj.gov>; Sandberg, Justin (CIV <Justin.Sandberg@usdoj.gov>; Bailey, Kate (CIV <Kate.Bailey@usdoj.gov> Cc: Kasdan, Ira <IKasdan@KelleyDrye.com>; Wilson, Joseph D. <JWilson@KelleyDrye.com>; 'Jon Ressler' <jressler@rooselaw.com> Subject: Awaiting Your Response to Our Query - Steigerwald v. Berryhill Erin, During our November 20 status conference we reported to Judge Gwin that many class members had been asking whether they could possibly lose money and/or benefits by staying in the class. Judge Gwin instructed you to obtain an answer for us. After the conference was over, you confirmed your personal belief, as was Ira s, that class members benefits would not be negatively affected by the performance of the Subtraction Recalculation itself. You did state, however, SSA s policy that once a class member s file is opened and reexamined, SSA takes whatever action it believes to be appropriate or desirable. In August, Plaintiffs raised this issue in Plaintiffs Motion for Approval of Proposed Class Notice, filed on August 17, See Doc. 76, PageID # 943, n. 4. SSA s Opposition to that Motion did not respond to that point of Plaintiffs Motion at all, signaling SSA s agreement with Plaintiffs position as set out in that footnote, as follows: [t]he relief that this Court should impose and that has been requested is the performance of the Subtraction Recalculation and the payment of any Retroactive Underpayments due. The Court should not allow Defendants to use this litigation to obtain the return of any purported overpayments. To the degree that Defendants feel compelled to do so in proceedings separate and apart from this case, the Court s final judgment, if favorable to Plaintiffs, should restrict Defendants from doing anything in this matter other than performing the Subtraction Recalculation and making Retroactive Underpayments to deserving class members. See, e.g., Guadamuz, 662 F. Supp. at 1069 ( The Secretary shall identify all underpaid claimants who can be identified by computer, calculate the amount of their underpayment, and distribute reimbursement checks within six (6 months from the date of this order.. Doc. 76, PageID # 943, n. 4. Last Wednesday, November 28, I called you to follow up regarding this issue. I told you again, as Ira reported to the Judge and you on the 20th, that many class members have been raising it. 3

4 Case: 1:17-cv JG Doc #: 84 Filed: 12/04/18 4 of 8. PageID #: 1041 You responded that you did not have an answer yet, but would likely have an answer by the beginning of this week. Thank you. Bez BEZALEL STERN Senior Associate Kelley Drye & Warren LLP Washington Harbour 3050 K Street NW, Suite 400 Washington, DC Office: ( Cell: ( bstern@kelleydrye.com From: Brizius, Erin E. (USAOHN [mailto:erin.e.brizius2@usdoj.gov] Sent: Monday, December 03, :31 PM To: Stern, Bezalel <BStern@KelleyDrye.com>; Asher, Ruchi (USAOHN <Ruchi.Asher@usdoj.gov>; Sandberg, Justin (CIV <Justin.Sandberg@usdoj.gov>; Bailey, Kate (CIV <Kate.Bailey@usdoj.gov> Cc: Kasdan, Ira <IKasdan@KelleyDrye.com>; Wilson, Joseph D. <JWilson@KelleyDrye.com>; 'Jon Ressler' <jressler@rooselaw.com> Subject: RE: Awaiting Your Response to Our Query - Steigerwald v. Berryhill CAUTION External Bez, Thank you for your . As we discussed last week, we are working with SSA to provide an answer to your question and expect to have it you soon. Best, Erin Erin E. Brizius Assistant U.S. Attorney 4

5 Case: 1:17-cv JG Doc #: 84 Filed: 12/04/18 5 of 8. PageID #: 1042 United States Courthouse 801 West Superior Avenue, Suite 400 Cleveland, Ohio Direct: ( Fax: ( Erin.E.Brizius2@usdoj.gov From: Brizius, Erin E. (USAOHN [mailto:erin.e.brizius2@usdoj.gov] Sent: Tuesday, December 04, :44 AM To: Kasdan, Ira <IKasdan@KelleyDrye.com>; Stern, Bezalel <BStern@KelleyDrye.com>; 'Jon Ressler' <jressler@rooselaw.com>; Wilson, Joseph D. <JWilson@KelleyDrye.com> Cc: Asher, Ruchi (USAOHN <Ruchi.Asher@usdoj.gov>; Bailey, Kate (CIV <Kate.Bailey@usdoj.gov>; Sandberg, Justin (CIV <Justin.Sandberg@usdoj.gov> Subject: Steigerwald CAUTION External Counsel, In response to your inquiry, SSA has provided the following answer about the effect of the recalculation on SSA benefits: In most cases, for class members in both categories, current benefits should not be reduced or otherwise affected by performance of the windfall offset recalculation and application of the income exclusion found in 20 C.F.R (b(3. Under SSA rules, SSA does not expect that releasing any underpayment will affect a class member s benefits in the month the underpayment is received. We note that for current Title XVI recipients, any underpayment paid may be considered resources affecting SSI eligibility if kept for more than 9 months after the payment is issued. See POMS SI However, there may be rare cases in which the recalculation and application of the income exclusion may result in an overpayment. In addition, when reviewing an individual s record, the agency s normal rules and obligations continue to apply and may require the agency to take further action. Any such actions, while not directly related to the windfall offset recalculation, may affect an individual s current benefit amount. 5

6 Case: 1:17-cv JG Doc #: 84 Filed: 12/04/18 6 of 8. PageID #: 1043 Erin E. Brizius Assistant U.S. Attorney United States Courthouse 801 West Superior Avenue, Suite 400 Cleveland, Ohio Direct: ( Fax: ( Erin.E.Brizius2@usdoj.gov Respectfully submitted, s/jon H. Ressler, Ohio Bar No ROOSE & RESSLER A Legal Professional Association 6150 Park Square Drive Suite A Lorain, Ohio Telephone: ( Facsimile: ( jressler@rooselaw.com s/ Ira T. Kasdan, admitted pro hac vice s/ Joseph D. Wilson, admitted pro hac vice s/ Bezalel Stern, admitted pro hac vice KELLEY DRYE & WARREN LLP 3050 K Street, N.W., Suite 400 Washington, DC Telephone: ( Facsimile: ( ikasdan@kelleydrye.com jwilson@kelleydrye.com bstern@kelleydrye.com Attorneys for Plaintiff and the class 6

7 Case: 1:17-cv JG Doc #: 84 Filed: 12/04/18 7 of 8. PageID #: 1044 CERTIFICATE OF COMPLIANCE WITH LOCAL RULE 7.1 The undersigned declares under penalty of perjury that the foregoing Notice complies with the page limitations for a Standard matter, and is six pages long. /s/ Ira T. Kasdan Ira T. Kasdan Attorney for Plaintiff and the class 7

8 Case: 1:17-cv JG Doc #: 84 Filed: 12/04/18 8 of 8. PageID #: 1045 CERTIFICATE OF SERVICE I hereby certify that on this 4th day of December, 2018, a copy of the foregoing Notice was filed electronically. Notice of this filing will be sent to all parties by operation of the Court s electronic filing system. Parties may access this filing through the Court s system. /s/ Ira T. Kasdan Ira T. Kasdan Attorney for Plaintiff and the class 8