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Case 211-cv-07298-WJM-MF Document 88-3 Filed 05/17/16 Page 29 of 71 PageID 4038 UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY ALPHONSE A. DEMARIA, et al., on their own behalf and on behalf of Certified Classes, - v. - Plaintiffs, HORIZON HEALTHCARE SERVICES, INC. d/b/a HORIZON BLUE CROSS BLUE SHIELD OF NEW JERSEY, et al., Defendants. Case No. 211-cv-07298(WJM)(MF) PLAINTIFFS UNOPPOSED MOTION FOR PRELIMINARY APPROVAL OF CLASS SETTLEMENT Plaintiffs and the Certified Classes, by their undersigned counsel, move pursuant to Fed. R. Civ. P. 23(e) for this Court to preliminarily approve a settlement of this class action between Plaintiffs, on behalf of certified classes, and Defendants Horizon HealthCare Services, Inc., d/b/a Horizon Blue Cross Blue Shield of New Jersey and Horizon HealthCare of New Jersey, Inc., d/b/a Horizon HMO (collectively Horizon ), and in support state 1. On June 1, 2015, this Court certified two classes in this action, an ERISA Class and a Non-ERISA Class (Dkt. 75). On August 20, 2015, the Third Circuit denied Horizon s petition for appeal under Rule 23(f). 2. After lengthy and time consuming negotiations, the parties on May 6, 2015 reached a final agreement in principle to settle this action, subject to reduction to, and execution of, a final written agreement. The parties have since executed a written Settlement Agreement (the Settlement or the Settlement Agreement ) (a copy of which is an exhibit to the attached 4. FIRM36394517v1 5082558.5 5. 5082558.6
Case 211-cv-07298-WJM-MF Document 88-3 Filed 05/17/16 Page 30 of 71 PageID 4039 Memorandum). The Settlement Agreement is fair, reasonable, and adequate. 3. In support of this Motion, Plaintiffs attach a Memorandum of Law (the Memorandum ) with exhibits, including proposed Mailed Notice, proposed Publication Notice, proposed Long Form Notice, and the proposed Judgment. 4. Plaintiffs request that this Court preliminarily approve the Settlement Agreement, and enter a Preliminary Approval Order in the form substantially as attached (the Order), including ordering the following procedure for disseminating notice of the proposed Settlement to the Class a. Authorizing and directing Plaintiffs and Class Counsel to retain Epiq Class Action & Claims Solutions, Inc., 10300 Southwest Allen Boulevard, Beaverton, OR 97005 as Settlement Administrator (the Settlement Administrator ). b. Authorizing Class Counsel and the Settlement Administrator to operate a Web site www.njchiroclassaction.com (the Web site ) for the dissemination of information related to this case. c. Class Counsel shall cause the Settlement Administrator, within fourteen (14) calendar days of entry by the Court of the Order of Preliminary Approval, to mail the Mailed Notice to Class Members at the address of each such person as set forth in the Claims Data, or who otherwise may be identified through further reasonable effort; d. Class Counsel shall cause, as soon as practicable after entry by the Court of the Order of Preliminary Approval, the Publication Notice to be published as set forth in 26 of the Settlement Agreement; e. Class Counsel shall cause the Settlement Administrator, within seven (7) calendar days of entry by the Court of the Order of Preliminary Approval, to post and publish on 2 2. FIRM36394517v1 5082558.5 3. 5082558.6
Case 211-cv-07298-WJM-MF Document 88-3 Filed 05/17/16 Page 31 of 71 PageID 4040 the Web site the Long Form Notice; and f. Class Counsel shall file their Motion for Attorneys Fees, payment of Litigation Expenses, and payment of Service Awards, together with supporting memorandum and papers, no later than thirty-nine (39) days after the date of the Order of Preliminary Approval. 5. Plaintiffs also request that this Court order that any Class Member who wishes to object to the proposed Settlement must file with the Court, and serve on Class Counsel and Defendant s Counsel, a written statement of objection no later than seventy-five (75) days after the date of the Order of Preliminary Approval, which statement must contain the information set forth in the Order of Preliminary Approval. 6. Plaintiffs also request that this Court order that any Class Member who wishes to opt out of the Class must complete and mail to the Settlement Administrator a Request for Exclusion that is postmarked no later than seventy-five (75) calendar days from the date of the Order of Preliminary Approval, which Request for Exclusion must contain the information set forth in the Order of Preliminary Approval. 7. Plaintiffs also request that this Court schedule a Final Approval Hearing at which the Court will consider (a) whether the Settlement should be finally approved as fair, reasonable, and adequate for the Class, including any timely objections thereto; (b) whether the Judgment granting approval of the Settlement and dismissing the Class Action with prejudice should be entered; (c) whether Class Counsel's application for attorneys fees and payment of Litigation Expenses should be granted; and (d) whether Class Counsel s application for Service Awards to Plaintiffs should be granted. 8. Counsel for Horizon has reviewed this Motion, and Horizon does not oppose this 3 2. FIRM36394517v1 5082558.5 3. 5082558.6
Case 211-cv-07298-WJM-MF Document 88-3 Filed 05/17/16 Page 32 of 71 PageID 4041 Motion or the relief sought. WHEREFORE, Plaintiffs respectfully request that this Court preliminarily approve the Settlement and enter the proposed Order, which is attached. Dated May, 2015 Respectfully submitted, /s/ John W. Leardi John W. Leardi, Esq. BUTTACI LEARDI & WERNER LLC 103 Carnegie Center, Suite 323 Princeton, New Jersey 08540 jwleardi@buttacilaw.com pdwerner@buttacilaw.com Tel (609) 799-5150 Fax (609) 799-5180 William K. Meyer ZUCKERMAN SPAEDER LLP 100 East Pratt Street, Suite 2400 Baltimore, MD 21202 wmeyer@zuckerman.com Tel (410) 332-0444 Fax (410) 659-0436 D. Brian Hufford Jason S. Cowart ZUCKERMAN SPAEDER LLP 399 Park Avenue, 14th Floor New York, NY 10022 dbhufford@zuckerman.com jcowart@zuckerman.com bmahanna@zuckerman.com Tel (212) 704-9600 Fax (212) 704-4256 Attorneys for Plaintiffs 4 2. FIRM36394517v1 5082558.5 3. 5082558.6
Case 211-cv-07298-WJM-MF Document 88-3 Filed 05/17/16 Page 33 of 71 PageID 4042 CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this th day of May 2016, a copy of Plaintiffs Unopposed Motion for Preliminary Approval of Class Settlement, supporting Memorandum of Law and exhibits thereto was (a) emailed and (b) sent by first class mail, postage prepaid, to James P. Flynn, Esq. EPSTEIN BECKER & GREEN, P.C. One Gateway Center Newark, NJ 07102 Attorneys for Defendants /s/ John W. Leardi John W. Leardi 5 2. FIRM36394517v1 5082558.5 3. 5082558.6
Case 211-cv-07298-WJM-MF Document 88-3 Filed 05/17/16 Page 34 of 71 PageID 4043 Exhibit 2
Case 211-cv-07298-WJM-MF Document 88-3 Filed 05/17/16 Page 35 of 71 PageID 4044 UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY ALPHONSE A. DEMARIA, et al., on their own behalf and on behalf of certified classes, - v. - Plaintiffs, HORIZON HEALTHCARE SERVICES, INC. d/b/a HORIZON BLUE CROSS BLUE SHIELD OF NEW JERSEY, et al., Defendants. Case No. 211-cv-07298(WJM)(MF) [PROPOSED] ORDER PRELIMINARILY APPROVING CLASS ACTION SETTLEMENT Upon consideration by this Court of Plaintiffs Unopposed Motion for Preliminary Approval of Class Settlement in which Defendants concur (the Motion ), and after review of Plaintiffs supporting Memorandum of Law and exhibits (the Memorandum ), including the Settlement Agreement executed between the parties (the Settlement or Agreement ), and it appearing to this Court that good cause for the relief therein prayed has been shown, it is this day of, 2016 by the United States District Court for the District of New Jersey, ORDERED that the Motion be, and the same hereby is, GRANTED, as set forth herein. The Court makes the following findings and orders 1. As used herein, words with initial capitalization shall have the same meaning as set forth in the Agreement, except where otherwise noted. 2. The Court preliminarily approves the Settlement Agreement, finding that there is 5082585.3
Case 211-cv-07298-WJM-MF Document 88-3 Filed 05/17/16 Page 36 of 71 PageID 4045 sufficient basis for concluding that the Settlement as fair, reasonable, and adequate under Fed. R. Civ. P. 23(e), such as to warrant dissemination of notice of the proposed Settlement to the Class as provided by the Motion and the Settlement Agreement. The Court finds that the Settlement contains no obvious deficiencies and that the parties entered into the Agreement in good faith, following arms-length negotiation between their respective counsel. 3. The Court authorizes and directs Plaintiffs and Class Counsel to retain Epiq Class Action & Claims Solutions, Inc., 10300 Southwest Allen Boulevard, Beaverton, OR 97005 as the Settlement Administrator to implement the terms of the proposed Settlement, and authorizes and directs such Settlement Administrator to (a) mail the Mailed Notice, (b) publish the Publication Notice, and (c) post the Long Form Notice and exhibits thereto on the Web site (www.njchiroclassaction.com), as provided by the Settlement. The Court also authorizes the Settlement Administrator to carry out such other responsibilities as are provided for in the Agreement or may be agreed to by the Parties in this Class Action. 4. The Court approves, as to form and content, the Mailed Notice, the Publication Notice, and the Long Form Notice, attached to the Memorandum as Exhibits D, E, and F, respectively. 5. The Court also approves the procedure for disseminating notice of the proposed Settlement to the Class as set forth in the Agreement, to wit a. Class Counsel shall cause the Settlement Administrator, within fourteen (14) calendar days of entry by the Court of the Preliminary Approval Order, to mail the Mailed Notice to Class Members at the address of each such person as set forth in the Claims Data, or who otherwise may be identified through further reasonable effort; b. Class Counsel shall cause the Settlement Administrator, as soon as 2 5082585.3
Case 211-cv-07298-WJM-MF Document 88-3 Filed 05/17/16 Page 37 of 71 PageID 4046 practicable after entry by the Court of the Preliminary Approval Order, to cause to be published the Publication Notice as set forth in 12(y) of the Settlement; c. Class Counsel shall cause the Settlement Administrator, within seven (7) calendar days of entry by the Court of the Preliminary Approval Order, to post and publish on the Web site the Long Form Notice; and d. Class Counsel shall cause the Settlement Administrator to make available on the Web site, as soon as practicable after filing, Class Counsel s Motion for Attorneys Fees, payment of Litigation Expenses, and payment of Service Awards, together with supporting memorandum and papers. 6. The Court finds that the notice to be given constitutes the best notice practicable under the circumstances, and constitutes valid, due, and sufficient notice to the Class in full compliance with the requirements of applicable law, including the Due Process Clause of the United States Constitution. 7. At or before the Final Approval Hearing (defined below), the Settlement Administrator shall provide the Court with a declaration showing that notice was disseminated in accordance with this Order and the Settlement. 8. A hearing on final approval of the Settlement, an award of attorneys fees and payment of Litigation Expenses to Class Counsel, and award of Service Awards to Plaintiff (the Final Approval Hearing ) shall be held at on, 2016 at before the undersigned, at the United States District Court for the District of New Jersey, Martin Luther King Building & U.S. Courthouse, 50 Walnut Street, Room 4015 Newark, NJ 07101, Courtroom MLK 4B. At the Final Approval Hearing, the Court will consider (a) whether the Settlement should be finally approved as fair, reasonable, and adequate 3 5082585.3
Case 211-cv-07298-WJM-MF Document 88-3 Filed 05/17/16 Page 38 of 71 PageID 4047 for the Class; (b) whether a judgment granting approval of the Settlement and dismissing the Class Action with prejudice should be entered; (c) whether Class Counsel's application for attorneys fees and payment of Litigation Expenses should be granted; and (d) whether Class Counsel s application for Service Awards to Plaintiffs should be granted. 9. Objections. a. Any Class Member who complies with the requirements of this paragraph may object to any aspect of the proposed Settlement either on his or her own or through an attorney hired at his or her expense. b. Any Class Member who wishes to object to the proposed Settlement must file with the Court, and serve on Class Counsel and Defendant s Counsel, at the addresses set forth below, a written statement of objection no later than seventy-five (75) days after the date of this Order. Such statement shall include (a) the objecting Class Member s full name, address and telephone number and that of his or her counsel, if any; (b) all tax identification or social security numbers under which the Class Member submitted claims for reimbursement to Horizon during the Class Period; (c) all objections and any evidence the objecting Class Member wishes to introduce in support of the objection; (c) a statement as to whether the Class Member intends to appear at the Final Approval Hearing, either individually or through counsel; (d) the objecting Class Member s signature, (e) the case name and case number set forth in the caption of this Order; and (f) a detailed list of any other objections submitted by the Class Member, or his/her counsel, to any class actions submitted in any court, whether state or otherwise, in the United States in the previous five (5) years. If the Class Member or his/her counsel has not objected to any other class action settlement in any court in the United States in the previous five (5) years, he/she shall affirmatively state so in the written materials provided in connection with the 4 5082585.3
Case 211-cv-07298-WJM-MF Document 88-3 Filed 05/17/16 Page 39 of 71 PageID 4048 objection. c. Any Class Member who does not timely file and serve a written objection pursuant to the terms hereof shall be deemed to have waived, and shall be foreclosed from thereafter raising, any objection to the Settlement. Any objection that is not timely made shall be barred. The filing of an objection allows Class Counsel or Defendant s Counsel to notice such objecting person for and take his or her deposition consistent with the Federal Rules of Civil Procedure at an agreed-upon location, and to seek any documentary evidence or other tangible things that are relevant to the objection. Failure by an objector to make himself or herself available for a deposition or to comply with expedited discovery requests may result in the Court striking said objector s objection and otherwise denying that person the opportunity to make an objection or be further heard. The Court reserves the right to tax the costs of any such discovery to the objector or the objector s counsel should the Court determine that the objection is frivolous or is made for an improper purpose. d. The procedures and requirements for filing objections in connection with the Final Approval Hearing are intended to ensure the efficient administration of justice and the orderly presentation of any Class Members objection to the Settlement, in accordance with the due process rights of all Class Members. e. Any Class Member who files and serves a timely written objection pursuant to the terms of this Order and complies with the requirements of this paragraph may also appear at the Final Approval Hearing either in person or through counsel retained at the Class Member s expense. Class Members or their attorneys intending to appear at the Final Approval Hearing must serve on Class Counsel and Defendant s Counsel, and file with the Court, no later than thirty (30) calendar days before the Final Approval Hearing, a notice of intention to appear, 5 5082585.3
Case 211-cv-07298-WJM-MF Document 88-3 Filed 05/17/16 Page 40 of 71 PageID 4049 setting forth the case number, and the name, address, telephone number, and, if available, email address of the Class Member (and, if applicable, the name, address, telephone number, and email address of the Class Member s attorney). Any Class Member who does not timely file and serve a notice of intention to appear pursuant to the terms of this Order shall not be permitted to appear, except for good cause shown. 10. Exclusions. a. Any Class Member may request to be excluded (or opt out ) from the Class. A Class Member who wishes to opt out of the Class must complete and mail to the Settlement Administrator a Request for Exclusion that is postmarked no later than seventy-five (75) calendar days from the date of this Order. The Request for Exclusion must be personally signed by the Class Member requesting exclusion and contain a statement that indicates a desire to be excluded from the Class. No person may opt-out of the Class any other person, or be optedout by any other person, and no person shall be deemed opted-out of the Class through any purported mass or class opt-outs. So-called mass or class opt-outs shall not be allowed. b. Except for those persons who have properly and timely submitted Requests for Exclusion, all Class Members will be bound by the Settlement if finally approved, and the Judgment and Order Approving Settlement, if entered, including the Release contained within the Settlement, regardless of whether they receive any monetary relief. c. Any Class Member who properly requests to be excluded from the Class shall not (a) be bound by any orders or judgments entered in the Class Action relating to the Settlement; (b) be entitled to relief under, or be affected by, the Settlement; (c) gain any rights by virtue of the Settlement; or (d) be entitled to object to any aspect of the Settlement. 6 5082585.3
Case 211-cv-07298-WJM-MF Document 88-3 Filed 05/17/16 Page 41 of 71 PageID 4050 11. Supplemental Filing Deadlines. a. The (a) Motion for Final Approval of the Settlement and Certification of the Settlement Class, together with the supporting memorandum and papers, and (b) Class Counsel s Motion for Attorneys Fees, payment of Litigation Expenses, and payment of Service Awards, together with supporting memorandum and papers, shall be filed no later than, 2016. b. The Parties may each file a supplemental brief no longer than twenty-five (25) pages in length to address any objections filed by Class Members. Said supplemental briefs shall be filed no later than seven (7) calendar days before the Final Approval Hearing. 12. If any deadline set forth in this Order falls on a Saturday, Sunday or federal holiday, then such deadline shall extend to the next Court business day. 13. The Court reserves the right to adjust the date of the Final Approval Hearing and related deadlines. In that event, the revised hearing date and/or deadlines shall be posted on the Settlement Website referred to in the Class Notice, and the Parties shall not be required to resend or re-publish the Class Notice. 14. Pending the Final Approval Hearing, all proceedings in the Class Action, other than proceedings necessary to carry out and enforce the terms and conditions of the Settlement and this Order, are hereby stayed. 15. The Court approves and adopts the termination provisions of Section VIII of the Agreement. 7 5082585.3
Case 211-cv-07298-WJM-MF Document 88-3 Filed 05/17/16 Page 42 of 71 PageID 4051 16. Names and addresses a. Class Counsel John W. Leardi, Esq. Vincent N. Buttaci, Esq. Paul D. Werner, Esq. BUTTACI LEARDI & WERNER LLC 103 Carnegie Center, Suite 323 Princeton, NJ 08540 William K. Meyer ZUCKERMAN SPAEDER LLP 100 East Pratt Street, Suite 2400 Baltimore, MD 21202 D. Brian Hufford Jason S. Cowart ZUCKERMAN SPAEDER LLP 399 Park Avenue, 14th Floor New York, NY 10022 b. Defendants counsel James P. Flynn, Esq. EPSTEIN BECKER & GREEN, P.C. One Gateway Center Newark, NJ 07102 c. Settlement Administrator Epiq Class Action & Claims Solutions, Inc. 10300 Southwest Allen Boulevard Beaverton, OR 97005 SO ORDERED William J. Martini United States District Judge 8 5082585.3
Case 211-cv-07298-WJM-MF Document 88-3 Filed 05/17/16 Page 43 of 71 PageID 4052 Exhibit 3
Case 211-cv-07298-WJM-MF Document 88-3 Filed 05/17/16 Page 44 of 71 PageID 4053 DeMaria v. Horizon Class Action Settlement Administrator PO Box 4390 Portland, OR 97208-4390 PRE-SORTED First-Class Mail US Postage Paid City, ST Permit No. XXXX THIS IS NOT JUNK MAIL. THIS POSTCARD PROVIDES IMPORTANT INFORMATION ABOUT YOUR LEGAL RIGHTS IN A CLASS ACTION CASE. PLEASE READ. [Class Member Name] [Street Address] [City, State, ZIP] Why Are You Receiving This Notice? This Notice is about the settlement of a class action lawsuit concerning the denial by Horizon Blue Cross Blue Shield of New Jersey ( Horizon ) of reimbursement claims submitted by chiropractors, DeMaria et al. v. Horizon et al. (the Lawsuit ). As the result of a proposed Settlement of the Lawsuit, you may be entitled to the payment of money for certain evaluation and management services ( E/M ) or physical therapy ( PT ) modalities provided on the same day as chiropractic manipulative therapy ( CMT ). You are receiving this Notice because Horizon s claims data identifies you as a chiropractor who provided E/M and/or PT on the same day as CMT but Horizon only paid for CMT. What Is the Lawsuit About? Horizon bundled (i.e., did not pay separately) claims submitted by NJ chiropractors for certain evaluation and management services ( E/M ) or physical therapy ( PT ) modalities provided on the same day as CMT. In 2009, the NJ Department of Banking and Insurance ordered Horizon to cease and desist this bundling practice as of April 10, 2010. The Lawsuit sought remedies for Horizon s bundling practice before that date. The Court certified the Lawsuit as a Class Action on June 1, 2015. Horizon denies that it did anything wrong, but the parties to the Lawsuit have reached a Settlement, which the Court has preliminarily approved. What is the Settlement? Horizon will pay $33,000,000 into an Escrow Account to be administered by a Court-appointed Settlement Administrator. After payment of fees and costs associated with the Lawsuit, the Settlement Administrator will distribute the balance of the Escrow Account, on a pro rata basis, to chiropractors whose claims for E/M and PT services on the same day as CMT services were denied by Horizon, for dates of service from Dec. 16, 2005 until April 10, 2010. Counsel for the Class will also ask the Court to award attorneys fees up to 33% of the settlement amount and to pay litigation expenses. What Do I Need to Do Now? Because your rights are affected, you have a choice to make now DO NOTHING By doing nothing, you will automatically receive your pro rata share of the Settlement. However, you give up the right to sue Horizon separately about the legal claims raised in this Lawsuit; or ASK TO BE EXCLUDED OR OBJECT If you ask to be excluded, you won t share in the Settlement. However, you keep the right to sue Horizon separately about the legal claims raised in the Lawsuit. You can also object to the Settlement. For instructions on requesting exclusion or objecting, visit the website listed below or contact the Settlement Administrator using the contact information below. It is important to note that the deadline for requesting exclusion is [Month 00, 2016]. Where Can I Get More Information? You can obtain a detailed notice about the Lawsuit and other important court documents at www.njchiroclassaction.com; or by calling the Settlement Administrator at 877-341-4577. Do not call Horizon. Questions? Call 1-877-341-4577 or visit www.njchiroclassaction.com 5082366.8
Case 211-cv-07298-WJM-MF Document 88-3 Filed 05/17/16 Page 45 of 71 PageID 4054 Exhibit 4
Case 211-cv-07298-WJM-MF Document 88-3 Filed 05/17/16 Page 46 of 71 PageID 4055 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF New Jersey If you are a Chiropractor who received payment from Horizon Blue Cross Blue Shield of New Jersey from 2005 to 2010, you could get a payment from a class action settlement. A federal court authorized this notice. This is not a solicitation from a lawyer. A settlement will provide $33,000,000 to resolve claims, as more fully explained below, for unreimbursed services performed by a certified class of chiropractors under healthcare plans administered and/or funded by Horizon between December 15, 2005 and April 10, 2010. The settlement resolves a class action lawsuit over whether Horizon unlawfully bundled payment for Evaluation and Management Services ( E/ M ) and certain physical therapy modalities ( PT ) with payment for Chiropractic Manipulative Therapy ( CMT ). The settlement avoids costs and risks to you from continuing the lawsuit; pays money to chiropractors and other class members like you; and releases Horizon and its plans from liability. Court-appointed lawyers for the certified class will ask the Court for up to $11,000,000 (1/3 of the $33,000,000) to be paid as fees and expenses for investigating the facts, litigating the case, and negotiating the settlement. Your legal rights are affected whether you act, or don t act. Read this notice carefully. YOUR LEGAL RIGHTS AND OPTIONS IN THIS SETTLEMENT DO NOTHING EXCLUDE YOURSELF You will remain in the Class and receive a payment if you previously submitted claims to Horizon for E/M and PT that qualify for reimbursement under the settlement. Get no payment. This is the only option that allows you to ever be part of any other lawsuit against Horizon, about the legal claims in this case. OBJECT Write to the Court about why you don t like the settlement. You will remain a part of the Class and entitled to payment if you qualify, but may still object to the settlement. GO TO A HEARING Ask to speak in Court about the fairness of the settlement. These rights and options and the deadlines to exercise them are explained in this notice. The Court in charge of this case still has to decide whether to approve the settlement. Payments will be made if the Court approves the settlement and after appeals are resolved. Please be patient. QUESTIONS? CALL 1-877-341-4577 TOLL FREE PARA UNA NOTIFICACIÓN EN ESPAÑOL, LLAMAR O VISITAR NUESTRO WEBSITE 5084865.13
Case 211-cv-07298-WJM-MF Document 88-3 Filed 05/17/16 Page 47 of 71 PageID 4056 WHAT THIS NOTICE CONTAINS BASIC INFORMATION 1. Why did I receive notice of the proposed settlement? 2. What is this lawsuit about? 3. Why is this a class action? 4. Why is there a settlement? WHO IS IN THE SETTLEMENT 5. How do I know if I am part of the settlement? 6. Are there exceptions to being included? 7. I m still not sure if I am included. THE SETTLEMENT BENEFITS WHAT YOU GET 8. What does the settlement provide? 9. How much will my payment be? 10. Will I have to pay taxes on any payments? HOW YOU GET A PAYMENT DO NOTHING 11. How can I get a payment? 12. When would I get my payment? 13. What am I giving up to get a payment or stay in the Class? EXCLUDING YOURSELF FROM THE SETTLEMENT 14. How do I get out of the settlement? 15. If I don t exclude myself, can I sue Horizon for the same thing later? 16. If I exclude myself, can I get money from this settlement? THE LAWYERS REPRESENTING YOU 17. Do I have a lawyer in the case? 18. How will the lawyers be paid? Will the Class Representatives receive anything beyond their share of claims? OBJECTING TO THE SETTLEMENT 19. How do I tell the Court that I don t like the settlement? 20. What s the difference between objecting and excluding? THE COURT S FAIRNESS HEARING 21. When and where will the Court decide whether to approve the settlement? 22. Do I have to come to the hearing? 23. May I speak at the hearing? IF YOU DO NOTHING 24. What happens if I do nothing at all? GETTING MORE INFORMATION 25. Are there more details about the settlement? 26. How do I get more information? - 2-5084865.13
Case 211-cv-07298-WJM-MF Document 88-3 Filed 05/17/16 Page 48 of 71 PageID 4057 BASIC INFORMATION 1. Why did I receive notice of the proposed settlement? Your name is included in claims data from Horizon as a chiropractor who, during the period of December 16, 2005 through April 10, 2010 ( Class Period ), performed on the same patient a CMT on the same day as E/M and PT, but Horizon only paid for the CMT, and you received at least one direct payment from Horizon during the Class Period. This makes you a member of the Class ( Class Member ). The Court ordered you to receive notice because you have a right to know about a proposed settlement of this class action lawsuit, and about all of your options, before the Court decides whether to approve the settlement. If the Court approves it and after objections and appeals are resolved, an administrator approved by the Court will make payments that the settlement allows. You will be informed of developments on the settlement web site. Information provided in this Notice explains the lawsuit, the settlement, your rights, what benefits are available, who is eligible for them, and how to get them. The Court in charge of the case is the United States District Court for the District of New Jersey, and the case is known as DeMaria et al. v. Horizon HealthCare Services, Inc., et al., Case No. 211-cv-07298 (WJM)(MF). The people who sued are Plaintiffs, and the Horizon entities they sued are Defendants. 2. What is this lawsuit about? The lawsuit claimed that Horizon unlawfully refused to pay separately or bundled claims for reimbursement for E/M and PT provided on the same day to the same patient as CMT. In October, 2009, The New Jersey Department of Banking and Insurance ordered Horizon to cease that bundling practice which Horizon did as of April 10, 2010. The lawsuit sought relief for that bundling practice, which occurred between December 16, 2005 and April 10, 2010. 3. Why is this a class action? In a class action, one or more people called Class Representatives (in this case Alphonse DeMaria, D.C., James Proodian, D.C., and T. Leonard Probe, D.C.), sued on behalf of people who have similar claims. All these people are a Class or Class Members. One court resolves the issues for all Class Members, except for those who exclude themselves from the Class. U.S. District Judge William J. Martini is in charge of this class action. 4. Why is there a settlement? The Court did not decide in favor of Plaintiffs or Defendants. Instead, the Court ruled that if Plaintiffs were to win at trial, the Class would not receive damages but only be entitled to have Horizon reprocess Class Members claims without the bundling policy but with other relevant claim exclusions and limitations. Both sides think they would have won at trial, but to avoid the costs and uncertain results of both a trial and re-processing by Horizon, the parties have agreed to a settlement. 3 5084865.13
Case 211-cv-07298-WJM-MF Document 88-3 Filed 05/17/16 Page 49 of 71 PageID 4058 The settlement means that Class Members will get compensation without the cost, time, uncertainty, appeals, and medical necessity reviews associated with re-processing by Horizon. The Class Representatives and the attorneys think the settlement is best for all Class Members. WHO IS IN THE SETTLEMENT 5. How do I know if I am part of the settlement? If you received a postcard notice about this settlement from Class Counsel, it is because the claims data reflects that you may meet the criteria for Class membership. You will be part of this settlement unless you fall within an exclusion (see question 6) or exclude yourself from the settlement (see question 14). 6. Are there exceptions to being included? You are not a Class Member if you did not receive at least one direct payment from Horizon for CMT claims that were performed on the same day as the unpaid E/M and/or PT claims that are the subject of this settlement. You are also not a Class Member if you only submitted claims tohorizon for patients covered under the Federal Employee Program ( FEP ); or if you were a Non-Participating ( out-ofnetwork ) provider who only submitted claims through Horizon s Multi-Plan Liaison ( MPL ) program involving labor union plans. The Court has ruled that those FEP and MPL claims are not part of this lawsuit because those claims were resolved by those plans themselves, not Horizon. 7. I m still not sure if I am included. If you are still not sure whether you are included, you can ask for free help. You can call the courtappointed Settlement Administrator, Epiq Class Action and Claims Solutions, Inc. ( Epiq ), at 1-877- 341-4577 for more information. DO NOT CALL HORIZON. THE SETTLEMENT BENEFITS WHAT YOU GET 8. What does the settlement provide? Horizon has agreed to create a $33,000,000 fund to resolve claims brought by the Class. Payments to Class members will be based upon claims previously submitted to, and denied by, Horizon. YOU DO NOT HAVE TO SUBMIT A NEW CLAIM. PAYMENTS WILL BE BASED ON CLAIMS YOU ALREADY SUBMITTED. 4 5084865.13
Case 211-cv-07298-WJM-MF Document 88-3 Filed 05/17/16 Page 50 of 71 PageID 4059 9. How much will my payment be? Your share of the $33 million settlement fund will depend on two things (1) what the Court awards in attorneys fees and other litigation expenses (see question 18, below); and (2) your pro rata share of the total claims that you and other Class members submitted to Horizon. (1) If the Court grants all the requested fees and reimbursement of expenses, there will be approximately $21,000,000 (more or less) left in the settlement fund available for distribution to Class Members. (2) Based on Horizon s claims data, Class counsel estimates that the total amount of E/M and PT claims that Class Members submitted to Horizon to be approximately $92 million in eligible charges. Thus, the money available in the settlement fund for distribution to Class Members should pay approximately 23% (more or less) of claims submitted. Class Counsel and the Class Representatives believe this is a good settlement because (a) historically, reimbursement on submitted chiropractic claims that are paid has been substantially reduced from charges submitted; and (b) settlement avoids the risks, delays, and uncertainty of both trial and re-processing (including alternative bases for denial or limitation) that the Court has already determined is the only available relief. The proposed Plan of Allocation is available on the settlement web site, www.njchiroclassaction.com. It provides payment details for Class Members (as defined above) based on each Class Member s respective share as calculated under the Plan of Allocation of denied E/M and PT claims performed on the same patient on the same day as a paid CMT claim, for all claims submitted to Horizon by Class Members during the Class Period. The Settlement covers all denied E/M and PT claims performed on the same day as a paid CMT claim, even if the CMT payment was not made directly to the Class Member, as long as the Class Member received at least one direct payment from Horizon during the Class Period. 10.Will I have to pay taxes on my payment? You may have to pay taxes on your payment. You should consult your tax preparer when you file your tax returns. The Settlement Administrator will send you a Form 1099. 5 5084865.13
Case 211-cv-07298-WJM-MF Document 88-3 Filed 05/17/16 Page 51 of 71 PageID 4060 11.How can I get a payment? HOW YOU GET A PAYMENT Do NOTHING You do not have to do anything to get a payment. You will automatically receive a check, based on reimbursement claims you previously submitted to Horizon. You do not have to submit any new claim forms. Payments will be based on claim forms previously submitted. 12.When would I get my payment? The Court will hold a hearing on [DATE] to decide whether to approve the settlement. If Judge Martini approves the settlement after that, there may be appeals. It s always uncertain whether these appeals can be resolved, and resolving them can take time, perhaps more than a year. Class Counsel will continue to update the progress of the case on the settlement website, www.njchiroclassaction.com. Please be patient. 13.What am I giving up to get a payment or stay in the Class? Unless you exclude yourself, you are staying in the Class. That means that you can t sue, continue to sue, or be part of any other lawsuit against Horizon about the legal issues in this case. It also means that all of the Court s orders will apply to you and legally bind you. It also means that a Release of Claims that is part of the Settlement Agreement will apply to any claims you may have had against Horizon related to this lawsuit. EXCLUDING YOURSELF FROM THE SETTLEMENT If you don t want a payment from this settlement, but you want to keep the right to sue or continue to sue Horizon, on your own, about the legal issues in this case, then you must take steps to get out. This is called excluding yourself or is sometimes referred to as opting out of the Class. 14.How do I get out of the settlement? To exclude yourself from the settlement, you must send a letter by mail saying that you want to be excluded from DeMaria et al. v. Horizon. Be sure to include your name, address, telephone number, and your signature. You must mail your exclusion request postmarked no later than [DATE] to DeMaria v. Horizon Exclusion PO Box 4390 Portland, OR 97208-4390 You can also use the Request for Exclusion form available for download on the seettlement website, www.njchiroclassaction.com. If you ask to be excluded, you will not get any settlement payment, and you cannot object to the settlement. You will not be legally bound by anything that happens in this lawsuit. 6 5084865.13
Case 211-cv-07298-WJM-MF Document 88-3 Filed 05/17/16 Page 52 of 71 PageID 4061 15.If I don t exclude myself, can I sue Horizon for the same thing later? No. Unless you exclude yourself, you give up any right to sue Horizon for the claims that this settlement resolves. If you have a pending lawsuit speak to your lawyer in that case immediately. You must exclude yourself from this Class to continue your own lawsuit. Remember, the exclusion deadline is [DATE]. 16.If I exclude myself, can I get money from this settlement? No. If you exclude yourself, you will not receive any payment. But, you may sue, continue to sue, or be part of a different lawsuit against Horizon. THE LAWYERS REPRESENTING YOU 17.Do I have a lawyer in this case? The Court appointed the following law firms to represent you and other Class Members. These lawyers are called Class Counsel. You will not be charged for these lawyers. If you want to be represented by your own lawyer, you may hire one at your own expense. John W. Leardi, Esq. Vincent N. Buttaci Paul D. Werner, Esq. BUTTACI LEARDI & WERNER LLC 103 Carnegie Center, Suite 323 Princeton, NJ 08540 William K. Meyer ZUCKERMAN SPAEDER LLP 100 East Pratt Street, Suite 2400 Baltimore, MD 21202 D. Brian Hufford Jason S. Cowart ZUCKERMAN SPAEDER LLP 399 Park Avenue, 14th Floor New York, NY 10022 18.How will the lawyers be paid? Will the Class Representatives receive anything beyond their share of claims? The Settlement Agreement allows Class counsel to ask the Court to approve payment of up to $11,000,000 (1/3 of the settlement) for attorneys fees, and a separate award to reimburse Class Counsel for out-of-pocket expenses incurred to prosecute this case. The Court may award less than these amounts. The attorneys fees would pay Class counsel for their work over the last six years to investigate the facts, litigate the case, and negotiate the settlement all without receiving any compensation to date. On or about [date], Class Counsel will post on the settlement website, www.njchiroclassaction.com, their petition for attorneys fees and reimbursement of expenses, which will specify the amounts requested and the reasons why Class counsel believe they are entitled to those payments. 7 5084865.13
Case 211-cv-07298-WJM-MF Document 88-3 Filed 05/17/16 Page 53 of 71 PageID 4062 Pursuant to the Settlement Agreement, Class counsel will also ask the Court to award separate payments of $45,000 each to Drs. DeMaria, Proodian, and Probe for their services as Class Representatives. Whatever awards the Court orders will reduce the $33,000,000 settlement fund. Horizon will also pay Epiq (the Settlement Administrator) the first $160,000 of the costs to administer the settlement (estimated at approximately $211,000), with any remaining costs paid from the settlement fund. OBJECTING TO THE SETTLEMENT You can tell the Court that you don t agree with the settlement or some part of it. 19.How do I tell the Court that I don t like the settlement? If you re a Class Member, you can object to the settlement if you don t like any part of it. You can give reasons why you think the Court should not approve it. The Court will consider your views. To object, you must use the Objection Form, which is available on the settlement website, www.njchiroclassaction.com. You may also send a letter, provided it contains the same information as requested on the Objection Form. You must mail the objection to the following four different addresses postmarked no later than [DATE] Court Class Counsel Clerk of the Court United States District Court for the District of New Jersey Martin Luther King Building & U.S. Courthouse 50 Walnut Street, Room 4015 Newark, NJ 07101 John W. Leardi BUTTACI LEARDI & WERNER LLC 103 Carnegie Center, Suite 323 Princeton, NJ 08540 William K. Meyer ZUCKERMAN SPAEDER LLP 100 East Pratt Street, Suite 2400 Baltimore, MD 21202 Defense Counsel James P. Flynn, Esq. EPSTEIN BECKER & GREEN, P.C. One Gateway Center Newark, NJ 07102 8 5084865.13
Case 211-cv-07298-WJM-MF Document 88-3 Filed 05/17/16 Page 54 of 71 PageID 4063 Please note Judge Martini has ordered that, if you object, Class Counsel and Defense Counsel may take your deposition, and review any relevant documents you may have, concerning your objection to the settlement. Neither Class Counsel nor Defense Counsel would represent you in those proceedings. If you desired to have legal representation in connection with such a deposition, you would have to obtain and pay for that yourself. 20. What s the difference between objecting and excluding? Objecting is simply telling the Court that you don t like something about the settlement. You can object only if you stay in the Class. Excluding yourself is telling the Court that you don t want to be part of the Class. If you exclude yourself, you have no basis to object because the case no longer affects you. THE COURT'S FAIRNESS HEARING The Court will hold a hearing to decide whether to approve the settlement. You may attend and you may ask to speak, but you don t have to. 21.When and where will the Court decide whether to approve the settlement? The Court will hold a Fairness Hearing at [DATE AND TIME], at the United States District Court for the District of New Jersey, Martin Luther King Building & U.S. Courthouse, 50 Walnut Street, Room 4015 Newark, NJ 07101, Courtroom MLK 4B. At this hearing the Court will consider whether the settlement is fair, reasonable, and adequate. If there are objections, the Court will consider them. Judge Martini will listen to people who have asked to speak at the hearing. The Court may also decide how much to pay to Class Counsel. After the hearing, the Court will decide whether to approve the settlement. We do not know how long these decisions will take. 22.Do I have to come to the hearing? No. Class Counsel will answer questions Judge Martini may have. But, you are welcome to come at your own expense. If you send an objection, you don t have to come to Court to talk about it. As long as you mailed your written objection on time, the Court will consider it. You may also pay your own lawyer to attend, but it s not necessary. 23.May I speak at the hearing? You may ask the Court for permission to speak at the Fairness Hearing. To do so, you must send a letter saying that it is your Notice of Intention to Appear in DeMaria v. Horizon. Be sure to include your name, address, telephone number, and your signature. Your Notice of Intention to Appear must be postmarked no later than [Date], and be sent to the Clerk of the Court, Class 9 5084865.13
Case 211-cv-07298-WJM-MF Document 88-3 Filed 05/17/16 Page 55 of 71 PageID 4064 Counsel, and Defense Counsel, at the four addresses in question 18. You cannot speak at the hearing if you excluded yourself. 24.What happens if I do nothing at all? IF YOU DO NOTHING If you do nothing, you ll get your pro rata share of the settlement fund, based on claims that you already submitted to Horizon. But, unless you exclude yourself, you won t be able to start a lawsuit, continue with a lawsuit, or be part of any other lawsuit against Horizon about the legal issues in this case, ever again. GETTING MORE INFORMATION 25.Are there more details about the settlement? This notice summarizes the proposed settlement. More details can be found on the settlement website, www.njchiroclassaction.com. These documents include the following Settlement Agreement Court s June 1, 2015 Opinion and Order Granting Class Certification Plan of Allocation Request for Exclusion Form Objection Form 26.How do I get more information? You can call 1-877-341-4577 toll free; write to DeMaria v. Horizon Class Action Settlement Administrator, PO Box 4390, Portland, OR 97208-4390; or visit the settlement website, www.njchiroclassaction.com. Please do not contact Horizon. 10 5084865.13
Case 211-cv-07298-WJM-MF Document 88-3 Filed 05/17/16 Page 56 of 71 PageID 4065 Exhibit 5
Case 211-cv-07298-WJM-MF Document 88-3 Filed 05/17/16 Page 57 of 71 PageID 4066 If you are a Chiropractor who filed claims with Horizon Blue Cross Blue Shield of New Jersey from 2005 to 2010, you could get a payment from a class action settlement. This Notice is about the settlement of a class action lawsuit concerning the denial by Horizon Blue Cross Blue Shield of New Jersey ( Horizon ) of reimbursement claims submitted by chiropractors, DeMaria et al. v. Horizon et al. (the Lawsuit ). As the result of a proposed Settlement of the Lawsuit you may be entitled to the payment of money for certain evaluation and management services ( E/M ) or physical therapy ( PT ) modalities provided on the same day to the same patient as chiropractic manipulative therapy ( CMT ). What Is the Lawsuit About? Horizon bundled (i.e., did not pay separately) claims submitted by chiropractors for certain evaluation and management services ( E/M ) or physical therapy ( PT ) modalities provided on the same day as CMT. In 2009, the NJ Department of Banking and Insurance ordered Horizon to cease and desist this bundling practice as of April 10, 2010. The Lawsuit sought remedies for Horizon s bundling practice before that date. The Court certified the Lawsuit as a Class Action on June 1, 2015. Horizon denies that it did anything wrong, but the parties to the Lawsuit have reached a Settlement, which the Court has preliminarily approved. What is the Settlement? Horizon will pay $33,000,000 into an Escrow Account to be administered by a Court-appointed Settlement Administrator. After payment of fees and costs associated with the Lawsuit, the Settlement Administrator will distribute the balance of the Escrow Account, on a pro rata basis, to chiropractors whose claims for E/M and PT services on the same day as CMT services were denied by Horizon, from Dec. 16, 2005 until April 10, 2010 (the Class Period ). Counsel for the Class will also ask the Court to award attorneys fees up to 33% of the settlement amount and to pay litigation expenses. Your Rights May Be Affected. If you were a chiropractor who submitted CMT, E/M, and/or PT claims to Horizon during the Class Period, your rights may be affected, and you have a choice to make now DO NOTHING By doing nothing, you will automatically receive your pro rata share of the Settlement. However, you give up the right to sue Horizon separately about the legal claims raised in this Lawsuit; or ASK TO BE EXCLUDED OR OBJECT If you ask to be excluded, you won t share in the Settlement. However, you keep the right to sue Horizon separately about the legal claims raised in the Lawsuit. You can also object to the settlement. For instructions on requesting exclusion or objecting, visit the website listed below or contact the Settlement Administrator using the contact information below. It is important to note that the deadline for requesting exclusion is [Month 00, 2016]. Where Can I Get More Information? You can obtain a detailed notice about the Lawsuit and other important court documents at www.njchiroclassaction.com; or by calling the Settlement Administrator at 877-341-4577. Do not call Horizon. 5119955.1 5119955.3 5119955.7