Plaintiffs’ Motion for Class Certification

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Honorable Susan Amini Hearing Date: March 18, 2025 Without Oral Argument

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SUPERIOR COURT OF WASHINGTON FOR KING COUNTY LYDIA ZOU, individually; BLAIR FLEMING, individually,

No. 23-2-18847-1 KNT PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION

Plaintiffs, v.

MULTIPLAN INC., a foreign corporation; REGENCE BLUESHIELD, a Washington corporation.

Defendants.

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I.

RELIEF REQUESTED

Plaintiffs filed this putative class action on behalf of all governmental employee tort victims in Washington from whom Defendants collected or attempted to collect thousands in subrogation based on false statements. It is undisputed that Defendants asserted subrogation liens as to 151 such tort victims based on the false statement that the lien was subject to ERISA, and not Washington’s longstanding public policy protecting tort victims. Defendants claimed nearly $2 million in subrogation liens against Washington tort victims between 2020 and 2024—including several six months after this lawsuit was filed.

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Dozens of these class members still have subrogation claims pending, worth several

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hundred thousand dollars. They could benefit immediately from certification and learning of this

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litigation. Conversely, over 100 class members have subrogation claims of less than $5,000—the

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types of claims that are meaningful to Class members but otherwise cost-prohibitive to pursue

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individually.

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Plaintiffs seek class certification on a Class defined as follows:

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All individuals covered by a “government plan,” as defined by 29 U.S. Code § 1002, established or maintained within Washington State, from whom MultiPlan and/or Regence collected or attempted to collect subrogation reimbursement, and stated verbally or in writing that the health plan was an ERISA plan or subject to ERISA. 1

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Plaintiffs seek certification pursuant to CR 23(c)(4)(A) (issue class certification) and CR 23(b)(2) (injunctive and declaratory relief) on narrow issues that apply to all class members: •

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Declaratory relief establishing that Class member health plans are not ERISA plans, which Defendants acknowledge in their Answer. RCW 7.24 et seq.

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•

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Establishing that Defendants violated the Consumer Protection Act (“CPA”)—that Defendants’ conduct toward the Class was unfair or deceptive, occurred in trade or

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commerce, and affects the public interest (pursuant to the Supreme Court’s

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directive in Panag v. Farmers, 166 Wn.2d 27, 204 P.3d 885 (2009)). 2

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Injunctive relief prohibiting Defendants from such further violation of the Consumer Protection Act, pursuant to RCW 19.86.090. 3

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Excluded from the Class are Defendant’s officers and employees and their children, if any, the Judge assigned to this case and their staff, all counsel, and the immediate family members of the same.

2 Proving violation of the CPA for injunctive purposes also establishes liability for subsequent class member damages claims, whether class wide damages, in groups, or individually. To the extent the Court distinguishes these purposes, Plaintiffs incorporate and analyze certification under CR 23(b)(3) as well.

3 Plaintiffs may move for class certification on causation and certain damages in the future. The above issues are the most pressing.

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Presumptive numerosity starts at 40—a requirement easily met here. These cases involve

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identical questions of law and fact because Defendants issued the same false “ERISA Lien” notice

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as to all class members.

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Plaintiffs’ claims are representative of the class claims because Defendants committed the

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same misconduct against the same types of people (tort victims) in the same context (subrogation)

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involving the same types of health plans (government) which by law cannot be ERISA plans.

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Plaintiffs will protect the interests of the class. That two healthcare professionals are

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willing to spend their time and resources pursuing this action—despite relatively small financial

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benefit to them individually—puts their dedication to this case beyond dispute. Thus, Plaintiffs

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request that they be appointed as Class Representatives, and their counsel appointed as Class

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Counsel.

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This Motion asks the Court to certify a Class serving three express public policies

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emphasized by the Supreme Court over many decades: (1) the protection of tort victims and their

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right to be made whole before their insurance company is (Thiringer and its progeny); (2)

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application of the CPA to deceptive subrogation practices (Panag and subsequently Kosovan); (3)

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class certification of CPA claims, “which benefits the community as a whole” (Scott v. Cingular

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Wireless). Plaintiffs’ Motion should be granted.

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II.

FACTUAL BACKGROUND

A. Washington Subrogation.

Plaintiffs’ Amended Complaint explains the significance of Washington’s made whole rule, and why Defendants sought to avoid it. The made whole rule provides that healthcare coverage may not seek subrogation or reimbursement from a tort victim unless they are first fully compensated for their injuries. Washington’s Supreme Court in 1978 explained that the made MOTION FOR CLASS CERTIFICATION - 3

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whole rule “embodies a policy deemed socially desirable in this state, in that it fosters the adequate

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indemnification of innocent automobile accident victims.” Thiringer v. Am. Motors Ins. Co., 91

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Wn.2d 215, 220, 588 P.2d 191 (1978). 4 Forty years later: “We decline the invitation to upset

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almost four decades of insurance law in Washington State recognizing the wisdom and fairness of

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the ‘made whole’ principle.” Group Health Cooperative v. Coon, 193 Wn.2d 841, 856, 447 P.3d

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139 (2019). 5 Coon holds that even if an insured accepts less than policy limits, they are not

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presumed to be made whole, 6 let alone when they are immediately tendered limits, as Dr. Zou was

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here.

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The made whole rule applies absent a specific statutory exception, such as Employee

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Retirement Income Security Act (“ERISA”), 29 U.S.C. Ch. 18. 7 Health plans and subrogation

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companies use the fact that a plan is an ERISA plan typically to demand first dollar and full

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payment for healthcare expenses from the victim, even if that means the victim receives very little

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or no compensation from the at-fault driver or their own UIM coverage. Subrogation collection

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companies also often cite ERISA to avoid paying a fair and proportional share of the victim’s

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attorney’s fees and costs, which is otherwise required under Washington law. See Mahler v. Szucs,

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135 Wn.2d 398, 957 P.2d 632 (1998). 8

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B. Procedural History.

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This is a class action on behalf of governmental employees in Washington state from whom

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Defendants collected or attempted to collect subrogation based on the fraudulent statement that

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their health plans were “ERISA” plans. This assertion, repeated dozens of times over many years,

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Plaintiff’s Amended Complaint par. 3.6.

Id. at 3.8-3.9.

6 Id. at 3.8.

7 Id. at 3.11-3.12.

8 Id. at 3.12-13.

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allowed Defendants to violate Washington’s subrogation laws based on longstanding public

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policy. Namely that tort victims are entitled to be made whole before paying back an insurer, and

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the insurer must then pay their fair share of attorney’s fees and costs.

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Plaintiffs filed this case on October 2, 2023 and first served discovery—including class

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discovery—on October 23. Defendant removed the case on November 3 alleging that Plaintiffs

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“fraudulently joined” Regence, a Washington corporation, to defeat diversity jurisdiction.

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Plaintiffs promptly moved to remand, a motion Judge Coughenour granted.

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On July 26, this Court denied Defendants’ Motion to Dismiss or in the Alternative Motion

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to Enforce Settlement. On August 23 Defendants filed their answer. In it, Defendants admit that

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Plaintiffs’ plans were not ERISA plans. 9 C. Putative Class Representatives’ Claims.

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a. Plaintiff Dr. Lydia Zou.

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Dr. Lydia Zou is a licensed pharmacist at Valley Medical Center. While crossing the street

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with her newborn son in a marked crosswalk, she was struck by an uninsured driver and seriously injured. 10 Her UIM carrier, Safeco, almost immediately tendered its $250,000 UIM limits.11 However, Regence repeatedly delayed payment of her bills and requested that she contact MultiPlan before accepting her own UIM benefits. 12

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MultiPlan also sent a Notice of ERISA Lien to Safeco on November 9, 2022. 13 Because

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Defendants cited it as an ERISA plan and ERISA plans typically receive first dollar on any

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recovery, Defendants’ actions assured that Safeco would not pay Dr. Zou her UIM benefits.

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Benefits for which she paid premiums for years, and from which she would still not be made whole.

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Defendants’ Answer Par. 3.49; 3.69.

Id. at 3.23.

11 Id. at 3.31.

12 Id. at 1.5.1.4.

13 Declaration of Andrew Ackley Ex. 2 (MPI_Zou_000422-424).

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In early 2023 Dr. Zou contacts MultiPlan without an attorney. On February 3, 2023, Subrogation Negotiator Lindsay Schekhtayan indicates a need “to do a complete verification on

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claims paid before I can consider any reduction and/or waiver.” 14 This meant that Dr. Zou could

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not obtain the Safeco insurance benefits she had paid for—and that Safeco had offered to tender—

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until MultiPlan completed its “verification.” 15 Ms. Schekhtayan requested this information, as

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subrogation collection companies often do, to assess whether the injured victim has been made whole. 16 In her email, Ms. Schekhtayan requested information from Dr. Zou: her last date of treatment; confirmation that she was not represented by an attorney; her out-of-pocket costs; her

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wage loss; and her future medical care. 17 On February 12, 2023, Dr. Zou responds to all of

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MultiPlan’s questions.18 Given that Safeco offered its full policy limit soon after the collision and

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without knowing the full extent of Dr. Zou’s damages, there should have been little question that

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Dr. Zou was not made whole. 19 Yet MultiPlan does not respond. 20

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On April 4, 2023, Dr. Zou emails Ms. Schekhtayan asking if she has completed her subrogation review. 21 On April 10, MultiPlan “Recovery Manager” Mary Wagner indicates it has “reached out to Regence for their approval for a lien reduction. They responded requesting additional information which was provided and the request is back out to the health plan for review.

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I anticipate a response by the end of the week.” 22 MultiPlan does not respond by the end of the

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week. 23 On April 19, 2023, Dr. Zou requests an update after the time indicated by Ms. Wagner

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elapses. 24 Ms. Wagner indicates, “The plan [Regence] has requested a 50/50 split” of the UIM

19 Id. at 3.34.

Id. at 3.35.

16 Id. at 3.37.

17 Id. at 3.36.

18 Id. at 3.38.

19 Id. at 3.39.

20 Id. at 4.40.

21 Id. at 3.41.

22 Id. at 3.42 (emphasis added).

23 Id. at 3.43.

24 Id. at 3.44.

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limits. 25 MultiPlan offered no medical cost ledger or other proof that its payments reached $125,000. 26

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Dr. Zou, still unrepresented by an attorney, cites Thiringer and the made whole rule, and

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reminds MultiPlan that she has not been made whole. 27 MultiPlan does not respond. 28 On May

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9, Dr. Zou requests an update. Two days later, MultiPlan emails, “Your health insurance plan

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[exclusively controlled by Regence] is a self‐funded ERISA plan and governed by Federal law.

Thiringer [the made whole rule] does not apply in this matter.” 29 Dr. Zou’s plan was not an ERISA plan and could not be one because local government plans are expressly excluded from ERISA under 29 U.S.C. § 1002-1003.

See also

https://www.dol.gov/general/topic/retirement/erisa. 30

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Ms. Wagner’s statement also directly contradicts Ms. Schekhtayan’s initial inquiry and the

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months’ long “verification” assessing whether Dr. Zou was made whole. 31 Dr. Zou discussed the

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issue with a coworker at Valley Medical, who told her the plan was not an ERISA plan. She

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explains this to MultiPlan on May 11. 32 On May 19, Dr. Zou emails explaining that MultiPlan’s false statements about ERISA are unfair and predatory, and that its deception and delay is prohibiting her from obtaining the $250,000 in UIM benefits she paid for. She requests that MultiPlan close the subrogation claim by

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May 26. 33 On May 22, 2023, Ms. Wagner indicates, “I have reached out to our legal counsel and

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we should be in touch shortly.” 34 But Ms. Wagner does not follow up. 35

18 19 Id. at 3.45.

Id. at 3.46.

27 Id. at 3.47.

28 Id. at 3.48.

29 Id. at 3.48-50.

30 Id. at 3.51-5.3.

31 Id. at 3.54.

32 Id. at 3.55.

33 Id. at 3.57.

34 Id. at 3.58.

35 Id. at 3.59.

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On May 30, Dr. Zou again stresses the importance of being able to access her UIM benefits, and requests closure of the subrogation claim by June 2, 2023, or she will be forced to retain an

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attorney. 36 MultiPlan still does not respond. 37 Soon after Plaintiffs’ counsel became involved,

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MultiPlan waived subrogation. But by this point, Dr. Zou had lost access to her UIM funds for

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several months, and incurred fees and expenses in fighting for and obtaining confirmation of what

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MultiPlan should have done immediately. 38 b. Plaintiff Blair Fleming.

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Blair Fleming was a cardiac cath-lab technologist at Valley Medical. On July 7, 2022, Ms. Fleming was a front passenger in a vehicle driven by her friend, when the vehicle turned into an approaching bus. Through no fault of her own, Ms. Fleming sustained serious head injuries. 39

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On January 16, 2023, MultiPlan “Recovery Analyst” Laura Landgrave sent Ms. Fleming a

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letter through her counsel’s office entitled “Notice of ERISA Lien.” The letter states that “Regence

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BlueShield of Washington is a self-funded plan under the protection of [ERISA],” and settlement

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funds must “be held in trust pending resolution of the captioned claim.” 40 Like Dr. Zou, Ms. Fleming’s plan was not an ERISA plan. 41 On August 31, 2023, Kathleen Montiel of MultiPlan reiterated, “Yes, Valley Medical Center is an Erisa [sic] policy.” 42 This came two months after MultiPlan’s corporate office was

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advised in writing that the specific Valley Medical plan at issue was not and could not be an ERISA

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plan. 43 More than a year earlier, MultiPlan “3rd Party Recovery (Paralegal)” Jennifer Bell sent an

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emergency department nurse employed at Valley Medical who had been hit by an uninsured driver,

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Id. at 3.60.

Id. at 3.61.

38 Id. at 3.63-64.

39 Id. at 3.67.

40 Id. at 3.68; 3.77. Declaration of Andrew Ackley Ex. 4.

41 Id. at 3.69.

42 Id. at 3.70.

43 Id. at 3.71.

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the same “Notice of ERISA Lien” “under the protection of [ERISA].” 44 MultiPlan was advised that local public hospital plans are excluded and exempt from ERISA. 45

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Despite the filing of this lawsuit, Defendants continued to issue Notice of ERISA Lien letters well into 2024. 46 MultiPlan and Regence have a pattern and practice of attempting to collect thousands of

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dollars from injured victims based on deception, delays intended to coerce injured victims who need access to settlement funds, falsehoods, and legal impossibilities. 47 Plaintiffs brought this action to enforce Washington’s public policy protecting tort victims and Washington’s public policy favoring CPA class actions for deceptive subrogation practices, as emphasized in Panag.

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D. Class Definition, Composition, and Claims.

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The class is defined as follows: All individuals covered by a “government plan,” as defined by 29 U.S. Code § 1002, established or maintained within Washington State, from whom MultiPlan and/or Regence collected or attempted to collect subrogation reimbursement, and stated verbally or in writing that the health plan was an ERISA plan or subject to ERISA.

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Individuals with “government plans” under that code are expressly exempt from ERISA. In identifying the class based on the federal law definition, Defendants are forced to admit that the class members did not have ERISA plans, and thus, they made misrepresentations.

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Defendants have identified 151 class members with government plans in Washington State where Defendants issued false ERISA Lien notices between 2020 and 2024. 48 Their standardized

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Id. at 3.73.

Id. at 3.74.

46 Declaration of Andrew Ackley Ex. 2.

47 Id. at 3.75-76.

48 Declaration of Andrew Ackley Ex. 1 – Defendants’ Response to Interrogatory No. 3 with updated chart. Defendants maintain that the chart produced in response to Interrogatory No. 3 about class members should be shielded from the Court record. Pursuant to the Protective Order and Defendants’ insistence on not filing a motion to seal sooner, Plaintiffs will wait to file the chart so that Defendants may move for an order to seal or redact. It will then be filed based on the Court’s ruling.

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letter sent to nearly all class members 49 is titled “Notice of ERISA Lien” and states in pertinent

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part:

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Regence BlueShield of Washington is a self-funded plan under the protection of the Employee Retirement Income Security Act of 1974, 29 U.S.C. §1001 et seq.

Regence BlueShield of Washington may be subrogated to the rights of recovery the Covered Individual(s) may have arising out of the captioned accident/injury, including but not limited to, payments that may be made pursuant to a third-party liability claim, uninsured and underinsured motorist coverage, homeowners’ insurance, medical payments coverage, personal injury protection coverage, nofault coverage, commercial premises coverage, and specific risk insurance.

MultiPlan hereby claims a lien on any proceeds due or agreed to be paid or paid to or on behalf of the Covered Individual(s).

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The reimbursement amounts that MultiPlan is entitled to recover are Plan assets subject to the exclusive control of Regence BlueShield of Washington and are to be held in trust pending resolution of the captioned claim. If you have any questions regarding this matter, I will be happy to discuss them with you. 50

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Of the 151 class members, dozens of tort victims still have pending subrogation claims.51

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Defendants also continued to send Notice of ERISA Lien letters in 2024 despite filing of this

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lawsuit in 2023. 52 All of these government employees could benefit immediately by formally

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becoming part of the class and receiving accurate information about their legal rights before they

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incur further damage like losing funds to which Defendants have no right. Funds that could be

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used for medical treatment, physical accommodations, or living expenses.

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In addition, over 100 Class members had subrogation claims of $5,000 or less. 53 This is

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half (or less) of the Small Claims Court limit where attorneys are generally prohibited from

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49 In some instances the letters were sent to liability/UIM insurers instead of or in addition to class members, which is a CPA violation all the same. Kosovan v. Omni Insurance Company, 19 Wn. App. 2d 668, 496 P.3d 347 (Div. 2 2021).

50 Id. at Ex. 2 – sample Notice of ERISA Lien letters to class members with identifying information redacted.

51 Id. at Ex. 1.

52 Id. 53 Id. at Ex. 1. Plaintiffs do not mean to constrain Class damages to the subrogation claimed. In some cases, class members who were not made whole would be entitled to full refund among other damages. In other cases, they may only be entitled to a partial refund for proportionate fees and costs. In others, if they never paid subrogation, they may only be entitled to loss of use of funds and/or other damages. For class certification purposes, it should suffice to point out that the original amount at stake was relatively small.

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participating. 54 It is very unlikely that these Class members could bring this type of claim, conduct

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adequate discovery, and present it themselves in court. Similarly, it is not economical to pay

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attorneys hundreds of dollars an hour to pursue such a claim outside of small claims court, if any

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attorneys were willing to take such a case.

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For point of reference, Plaintiffs’ counsel and staff have hundreds of hours of time into this

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case. Defendants’ unnecessary litigation strategies caused a substantial portion of this work—

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failed removal, refusal to respond to basic class discovery before a motion to dismiss, a failed

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motion to dismiss, and insistence that the parties brief the timing of a motion for class certification

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before the motion was filed. Plaintiffs’ attorneys currently have over $5,000 in costs before taking

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any depositions or paying any experts. 55

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E. Class Issues Relate to Defendants—Not Individual Plaintiffs.

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Though the Court is not asked to decide the merits at class certification, it is helpful to

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illustrate how evidence related to class issues pertains to Defendants and is therefore common to

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all class members. For example, MultiPlan trained its employees to identify government plans

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through terms like “government,” “city,” or “county,” specifically to determine that they are “Non-

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ERISA.” 56 Further, “The main distinction between ERISA and Non-ERISA plans can be found

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in the ACCOUNT NAME (aka the Employer). A major distinction is Non-ERISA account

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names will appear as a church, school, or state government. ERISA account names will be a

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private company or organization.” 57

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Defendants asserted an “ERISA Lien” 151 times over on plans labeled:

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•

Washington State Health Care Authority

https://kingcounty.gov/en/court/district-court/courts-jails-legal-system/small-claims Declaration of Andrew Ackley.

56 Declaration of Andrew Ackley Ex. 5.

57 Declaration of Andrew Ackley Ex. 6.

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South Sound 911

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King County

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City of Kennewick

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City of Lynnwood

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•

City of Burlington

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•

Pierce Transit

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City of Tacoma

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City of Newcastle

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Clark Public Utilities

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Kitsap Transit

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City of Milton

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Valley Communications Center (Emergency Department for Kent)

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City of Arlington

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Timberland Regional Library

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Whatcom Transportation Authority

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City of University Place

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Snohomish County

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Valley Medical Center 58 (the first page of the booklet states “King County Public

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Hospital District #1”)

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Defendants admittedly asserted liens based on false statements of law and fact and did so in violation of their own training policies. They committed the same misconduct against the same

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Ackley Decl. Ex. 1.

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types of people (tort victims) in the same context (subrogation) involving the same types of health

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plans (government) which by law cannot be ERISA plans.

III.

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ISSUES PRESENTED

1. Should the Court certify a class action of tort victims from whom Defendants attempted

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collect subrogation based on false statements of law and fact:

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A. To enter declaratory judgment that class member plans, which Defendants have

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identified as “government plans,” were not ERISA plans? (Yes.)

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B. To establish that Defendants’ conduct toward the Class constituted violation of the

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Consumer Protection Act? (Yes.)

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C. To enjoin further CPA violations? (Yes.)

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2. Should the Court appoint Plaintiffs as Class Representatives? (Yes.)

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3. Should the Court appoint Plaintiffs’ counsel as Class Counsel? (Yes.) IV.

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EVIDENCE RELIED UPON

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This motion is based on the papers and pleadings of this case, the Declaration of Andrew

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Ackley, the Declaration of Lydia Zou, and the Declaration of Blair Fleming accompanying this

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motion.

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V.

AUTHORITY

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A. Class Certification Considerations and Standards.

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Civil Rule 23(c)(1) provides, “(1) As soon as practicable after the commencement of an

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action brought as a class action, the court shall determine by order whether it is to be so maintained.

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An order under this subsection may be conditional, and may be altered or amended before the

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decision on the merits.” Thus, “If class certification is sought during the early stages of litigation,

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the courts will generally assume that the allegations in the pleadings are true and will not attempt

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to resolve material factual disputes or make any inquiry into the merits of the claim.” Douglas J.

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Ende, 14 Wash. Prac., Civil Procedure § 11:80 (3d ed.). However, the Court may “go beyond the

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pleadings and examine the parties’ evidence to the extent necessary to determine whether the

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requirements of CR 23 have been satisfied.” Id.

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In deciding whether CR 23 has been met, the Court “may consider all evidence in the record

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at the time the court rules on the motion. The court, however, does not conduct any sort of

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preliminary hearing on the merits of the case,” because “the court does not consider the merits of

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the case when ruling a motion for class certification.” Id.

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Washington courts “liberally interpret” CR 23 and “should err in favor of certifying the

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class” because it “is always subject to later modification or decertification.” Moeller v. Farmers

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Ins. Co. of Washington, 173 Wn.2d 264, 278, 267 P.3d 998 (2011). Certification “avoids

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multiplicity of litigation” and “saves members of the class the cost and trouble of filing individual

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suits, and also frees the defendant from the harassment of identical future litigation.” Id.

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A trial court’s decision to certify a class is reviewed for abuse of discretion, which occurs

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“when its decision is based on untenable grounds or is manifestly unreasonable or arbitrary.” Oda

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v. State, 111 Wn. App. 79, 90-91, 44 P.3d 8 (Div. 1 2002). The requirements for certification

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discussed below “are deliberately imprecise, giving the trial court considerable discretion to reach

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a result that seems fair on the facts and circumstances of each individual case.” 14 Wash. Prac.,

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Civil Procedure § 11:67 (3d ed.).

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B. Issue Class Certification.

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Civil Rule 23(c)(4) provides, “When appropriate, an action may be brought or maintained

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as a class action with respect to particular issues.” Washington Practice explains: When a case involves both common issues and individual issues, the court may grant class action status as to only some of the issues presented (ordinarily the MOTION FOR CLASS CERTIFICATION - 14

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issues common to all class members), leaving other issues to be litigated on an individual basis. For example, the court might grant class action status on the issue of liability if the claims of class members are all based upon the same theory while leaving the amount of damages owed to each class member to be determined on an individual, case-by-case basis. 59

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The phrase in the rule “When appropriate” gives the court “considerable discretion” in

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deciding whether to certify an issue class. 60

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The corresponding federal rule was expressly intended for cases like this one. The

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Advisory Committee “identified using an issue class for liability, and individual proof for

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damages, as a core purpose” 61:

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This provision recognizes that an action may be maintained as a class action as to particular issues only. For example, in a fraud or similar case the action may retain its “class” character only through the adjudication of liability to the class; the members of the class may thereafter be required to come in individually and prove the amounts of their respective claims. 62

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Newberg and Rubenstein on Class Actions explains:

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Thus, the ability to certify issue classes accords the courts discretion to realize the advantages and efficiencies of classwide adjudication of common issues when there also exist individual issues that must be tried separately. For these reasons, numerous courts across the circuits have long utilized issue certification in a vast array of different circumstances. 63

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C. Class Certification Requirements.

14

17

1. CR 23(b)(2) Class.

18

Under CR 23(b)(2) a court may certify a class when “The party opposing the class has

19

acted or refused to act on grounds generally applicable to the class, thereby making appropriate

20

final injunctive relief or corresponding declaratory relief with respect to the class as a whole.”

21 22 23 24

Douglas J. Ende, 14 Wash. Prac., Civil Procedure § 11:87 (3d ed.).

Douglas J. Ende, 14 Wash. Prac., Civil Procedure § 11:82 (3d ed.).

61 2 Newberg and Rubenstein on Class Actions § 4:89 (6th ed.).

62 Rules Advisory Committee Notes, 39 F.R.D. 69, 106 (1966).

63 2 Newberg and Rubenstein on Class Actions § 4:89 (6th ed.).

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STRITMATTER KESSLER KOEHLER MOORE 3600 15th Ave West, Suite 300 | Seattle, WA 98119 Tel: 206-448-1777

1

Here, Defendants acted on “grounds generally applicable to the class” by committing the same

2

misconduct against the same types of people (tort victims) in the same context (subrogation)

3

involving the same types of health plans (government).

4

The Rule provides four prerequisites to class certification:

5

(1) the class is so numerous that joinder of all members is impracticable;

6

(2) there are questions of law or fact common to the class;

7

(3) the claims or defenses of the representative parties are typical of the claims or defenses

8

of the class; and

9

(4) the representative parties will fairly and adequately protect the interests of the class.

10

None of these can be genuinely disputed on the narrow issues of CPA liability and what

11 12

Defendants have already admitted—that the government health plans are not ERISA plans. a.

Numerosity.

13

Plaintiffs need not show that it would be impossible to join all proposed class members,

14

but that it would be “extremely difficult or inconvenient.” See Miller v. Farmer Bros. Co., 115

15

Wn. App. 815, 821, 64 P.3d 49 (Div. 1 2003). As a general rule, classes of 40 or more create a

16

rebuttable presumption that joinder is impracticable. Id. The 151 class members here nearly

17

quadruple that. And “Other sources have stated that a class having between 25-30 members raises

18

a presumption of impracticability of joinder.” Id. (citing EEOC v. Printing Indus. of Metro.

19

Washington, D.C., Inc., 92 F.R.D. 51, 53 (1981)).

20

b.

Commonality.

21

“[T]here is a low threshold to satisfy” the test of commonality, which “is qualitative rather

22

than quantitative, that is, there need be only a single issue common to all class members.” Smith

23

v. Behr Process Corp., 113 Wn. App. 306, 320, 54 P.3d 665 (Div. 2 2002). A common question

24

MOTION FOR CLASS CERTIFICATION - 16

STRITMATTER KESSLER KOEHLER MOORE 3600 15th Ave West, Suite 300 | Seattle, WA 98119 Tel: 206-448-1777

1

is a “contention” that is “of such a nature that it is capable of class-wide resolution—which means

2

that determination of its truth or falsity will resolve an issue that is central to the validity of each

3

one of the claims in one stroke… ‘What matters … is … the capacity of a class-wide proceeding

4

to generate common answers apt to drive the resolution of the litigation.’” Wal-Mart Stores, Inc.

5

v. Dukes, 564 U.S. 338, 350, 131 S. Ct. 2541 (2011) (citation omitted).

6

Defendants admittedly made the same factual and legal misrepresentations about ERISA

7

in every class claim—all of which Defendants have identified as having government plans. There

8

should be no dispute that there are common questions of law and fact. The facts are almost entirely

9

identical.

10

c.

Typicality.

11

“Typicality is satisfied if the claim arises from the same event or practice or course of

12

conduct that gives rise to the claims of other class members, and if [the representatives’] claims

13

are based on the same legal theory.” Pellino v. Brink’s, Inc., 164 Wn. App. 668, 684, 267 P.3d

14

383 (Div. 1 2011).

15

As to the narrow issues for certification, Plaintiffs’ claims are typical of other class

16

members. Defendants admittedly made the same factual and legal misrepresentations in every

17

class claim.

18

d.

Protection of the Class.

19

Where a proposed class representative possesses the same interest as the class and has

20

suffered the same injury as class members, he or she meets the adequacy requirement. Cf. Beattie

21

v. CenturyTel, Inc., 511 F.3d 554, 562 (6th Cir. 2007). Indeed, where there is no conflict of interest

22

and the plaintiffs are poised to vigorously prosecute on behalf of the class through the retention of

23

experienced counsel, he or she may serve as the class representative. Id.

24

MOTION FOR CLASS CERTIFICATION - 17

STRITMATTER KESSLER KOEHLER MOORE 3600 15th Ave West, Suite 300 | Seattle, WA 98119 Tel: 206-448-1777

1

Plaintiffs are both medical professionals who worked at Valley Medical Center at the time

2

they were seriously injured in car crashes, through no fault of their own. Their individual claims,

3

in the grand scheme of things, are relatively small. Thus, their willingness to bring this lawsuit on

4

behalf of 149 other people demonstrates their conviction to help people who were and are less able

5

to protect themselves. See also Declaration of Lydia Zou and Declaration of Blair Fleming.

6

D. Established Public Policy of Subrogation Collection and Class Actions.

7

This CPA class action is for those tort victims who are less able to protect themselves from

8

unfair debt collection. And our Supreme Court has expressly and repeatedly reinforced public

9

policy (1) of the made whole rule, (2) applying the CPA to unfair subrogation, and (3) emphasizing

10

the importance of class actions to the CPA.

11

1. Public Policy – Made Whole Rule

12

Washington’s Supreme Court in 1978 explained that the made whole rule “embodies a

13

policy deemed socially desirable in this state, in that it fosters the adequate indemnification of

14

innocent automobile accident victims.” Thiringer v. Am. Motors Ins. Co., 91 Wn.2d 215, 220, 588

15

P.2d 191 (1978). 64 In Brown v. Snohomish County Physicians Corp., 120 Wn.2d 747, 845 P.2d

16

334 (1993), the Supreme Court noted how the UIM statute also reflects “the public policy favoring

17

full compensation of innocent … victims,” id. at 756, and the “strong public policy of Thiringer

18

and UIM coverage” overrides other policy considerations like the cost of treatment. Id. at 758. In

19

2019, the Supreme Court echoed itself again: “We decline the invitation to upset almost four

20

decades of insurance law in Washington State recognizing the wisdom and fairness of the ‘made

21 22 23 24

Plaintiff’s Amended Complaint par. 3.6.

MOTION FOR CLASS CERTIFICATION - 18

64

STRITMATTER KESSLER KOEHLER MOORE 3600 15th Ave West, Suite 300 | Seattle, WA 98119 Tel: 206-448-1777

1

whole’ principle.” Group Health Cooperative v. Coon, 193 Wn.2d 841, 856, 447 P.3d 139

2

(2019). 65

3

MultiPlan and Regence misrepresented the facts and law applicable to subrogation claims

4

specifically to “upset almost four decades of insurance law” assuring fairness to tort victims.

5

Public policy favors a class-wide remedy for this misconduct.

2. Public Policy—Subrogation Collection

6 7

Panag v. Farmers, 166 Wn.2d 27, 204 P.3d 885 (2009), which was brought as a class

8

action, detailed in broad language the public policy grounds to apply the CPA to deceptive

9

subrogation:

10

We conclude the CPA is applicable to deceptive insurance subrogation collection activities, considering the broad legislative mandate that the business of insurance is vital to the public interest, the public policies favoring honest debt collection, and the statutory mandate to liberally construe the CPA in order to protect the public from inventive attempts to engage in unfair and deceptive business practices.

11 12 13

Id. at 55 (emphasis added).

14

Panag applied the CPA to insurance subrogation collection from at-fault underinsured

15

motorists—third parties with no relationship to the insurer. Defendants here directed their

16

deceptions to their own insureds despite the “quasi-fiduciary” relationship with them, St. Paul Fire

17

& Marine Ins. Co. v. Onvia, Inc., 165 Wn.2d 122, 130 n.3, 196 P.3d 664 (2008), and a clear

18

statutory duty:

19

The business of insurance is one affected by the public interest, requiring that all persons be actuated by good faith, abstain from deception, and practice honesty and equity in all insurance matters. Upon the insurer, the insured, their providers, and their representatives rests the duty of preserving inviolate the integrity of insurance.

20 21 22 23 24

Id. at 3.8-3.9.

MOTION FOR CLASS CERTIFICATION - 19

65

STRITMATTER KESSLER KOEHLER MOORE 3600 15th Ave West, Suite 300 | Seattle, WA 98119 Tel: 206-448-1777

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RCW 48.01.030. Violation of that statute or WAC provisions by an insurer constitutes per se

2

violations of the CPA. See Keodalah v. Allstate Insurance Company, 194 Wn.2d 339, 349-50, 449

3

P.3d 1040 (2019).

4

Citing this statute and case law, the Court in Kosovan v. Omni Insurance Company, 19 Wn.

5

App. 2d 668, 496 P.3d 347 (Div. 2 2021) applied the CPA to premature subrogation lien notices

6

to third parties—in that case the at-fault driver’s insurer. Omni Insurance had paid $10,000 in auto

7

PIP benefits for the insured—Kosovan. The insurer via its collection agency Praxis sent a

8

subrogation lien letter to the tortfeasor’s liability carrier before Kosovan was made whole. Omni

9

and Praxis argued that a mere “attempt” at subrogation recovery could not constitute an unfair or

10

deceptive act, cautioning, “forbidding an insurer from making a mere attempt to collect on a

11

subrogation claim places insurers at risk of losing subrogation rights where an insured does not

12

make a decision with regard to whether to pursue a direct claim against the tortfeasor before the

13

statute of limitations for that claim expires.” Id. at 691-92. In the context of a quasi-fiduciary

14

relationship, the Court sided with Kosovan.

15

MultiPlan and Regence did not merely “attempt” subrogation before insureds were made

16

whole. They affirmatively misrepresented the facts and law applicable to 151 injured victims’

17

subrogation claims despite the quasi-fiduciary relationship and duty to “practice honesty and

18

equity in all insurance matters.” Public policy favors a class-wide remedy for this misconduct.

19

3. Public Policy – Class Actions

20

Washington’s Supreme Court has been unequivocal in its support of CPA class actions for

21

these types of claims: “Washington’s CR 23 authorizes class actions and demonstrates a state

22

policy favoring aggregation of small claims for purposes of efficiency, deterrence, and access to

23

justice.” Scott v. Cingular Wireless, 160 Wn.2d 843, 851, 161 P.3d 1000 (2007) (citing Darling

24

MOTION FOR CLASS CERTIFICATION - 20

STRITMATTER KESSLER KOEHLER MOORE 3600 15th Ave West, Suite 300 | Seattle, WA 98119 Tel: 206-448-1777

1

v. Champion Home Builders Co., 96 Wn.2d 701, 706, 638 P.2d 1249 (1982); 7 CHARLES ALAN

2

WRIGHT, ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 1754, at 543

3

(1972); Deposit Guar. Nat’l Bank v. Roper, 445 U.S. 326, 339, 100 S. Ct. 1166, 63 L.Ed.2d 427

4

(1980)).

5

“As we have noted before, when consumer claims are small but numerous, a class-based

6

remedy is the only effective method to vindicate the public’s rights. Class remedies not only

7

resolve the claims of the individual class members but can also strongly deter future similar

8

wrongful conduct, which benefits the community as a whole.” Scott, 160 Wn.2d at 852. The Scott

9

Court cites the wisdom of a lengthy passage 30 years prior:

10

15

Frequently numerous consumers are exposed to the same dubious practice by the same seller so that proof of the prevalence of the practice as to one consumer would provide proof for all. Individual actions by each of the defrauded consumers is often impracticable because the amount of individual recovery would be insufficient to justify bringing a separate action; thus an unscrupulous seller retains the benefits of its wrongful conduct. A class action by consumers produces several salutary byproducts, including a therapeutic effect upon those sellers who indulge in fraudulent practices, aid to legitimate business enterprises by curtailing illegitimate competition, and avoidance to the judicial process of the burden of multiple litigation involving identical claims. The benefit to the parties and the courts would, in many circumstances, be substantial.

16

Id. (citing Vasquez v. Superior Court, 4 Cal.3d 800, 808, 94 Cal.Rptr. 796, 484 P.2d 964 (1971)).

17

In Scott, the plaintiffs brought a CPA class action for hidden charges in cell phone billing.

11 12 13 14

18 19 20 21 22 23 24

Scott observes the history and purpose of the CPA with respect to class actions: Private enforcement of the CPA was not possible until 1971, when the legislature created the private right of action to encourage it. Private actions by private citizens are now an integral part of CPA enforcement. Private citizens act as private attorneys general in protecting the public's interest against unfair and deceptive acts and practices in trade and commerce. Consumers bringing actions under the CPA do not merely vindicate their own rights; they represent the public interest and may seek injunctive relief even when the injunction would not directly affect their own private interests.

MOTION FOR CLASS CERTIFICATION - 21

STRITMATTER KESSLER KOEHLER MOORE 3600 15th Ave West, Suite 300 | Seattle, WA 98119 Tel: 206-448-1777

1

Id. at 853 (internal citations omitted) (emphasis added). Further, “Courts have previously held

2

that class actions are a critical piece of the enforcement of consumer protection law. The reason is

3

clear. Without class actions, many meritorious claims would never be brought.” Id. at 854. 66

4

Here, many class claims may be relatively small. For example, they may be for loss of use

5

of a portion of settlement funds, or a reimbursement of Defendants’ share of attorney’s fees on a

6

small subrogation lien (e.g. if the lien is $1,000, the class member may be entitled to

7

reimbursement of $333 for the one-third fees). Public policy supports certification of this class.

8

E. Certification Under CR 23(b)(3).

9

Certification under CR 23(b)(3) “is something of a catch-all provision” authorizing class

10

actions not falling under CR 23(b)(1) or (2), typically claims for only monetary damages. 14

11

Wash. Prac., Civil Procedure § 11:76 (3d ed.). It is probably not necessary here for two reasons.

12

First, Plaintiffs do not seek “only monetary damages.” Rather, both the injunctive relief

13

and subsequent damages claims are based on establishing violations of the CPA under CR

14

23(b)(2). This Class is not one of those “not falling under CR 23(b)(1) or (2).”

15

Second, an issue class on liability serves as declaratory judgment on that issue. Class

16

members “receive the benefit of a declaratory judgment (if the class prevails) on the [liability]

17

issue but would need to proceed in individual suits to seek damages.” Bennett v. Dart, 53 F.4th

18

419, 420 (7th Cir. 2022).

19

distinguished and analyzed under CR 23(b)(3), Plaintiffs address that rule as well.

However, to the extent CPA liability for damages purposes is

20 21 22 23 24

Unrelated to issues here, the Scott Court held based on these policy grounds that a class action waiver in a cell phone contract was unconscionable and violated State policy. However, in AT&T Mobility LLC v. Concepcion, 563 U.S. 333, 339-40, 131 S.Ct. 1740 (2011), the U.S. Supreme Court held that California law prohibiting class arbitration waivers in consumer contracts was preempted by the Federal Arbitration Act, potentially overruling that holding in Scott. There is no arbitration defense in this case—thus the public policy detailed in Scott applies.

STRITMATTER KESSLER MOTION FOR CLASS CERTIFICATION - 22

66

KOEHLER MOORE 3600 15th Ave West, Suite 300 | Seattle, WA 98119 Tel: 206-448-1777

1

A CR 23(b)(3) class requires that the “court finds that the questions of law or fact common

2

to the members of the class predominate over any questions affecting only individual members,

3

and that a class action is superior to other available methods for the fair and efficient adjudication

4

of the controversy.” Both are pragmatic inquiries.

5

1. Predominance.

6

Predominance does not require uniformity.

“To determine whether common issues

7

predominate over individual ones, a trial court pragmatically examines whether there is a common

8

nucleus of operative facts in each class member's claim.” Chavez v. Our Lady of Lourdes Hospital

9

at Pasco, 190 Wn.2d 507, 516, 415 P.3d 224 (2018). As the Smith v. Behr Court held in a far more

10

complex products liability action:

11

Here, the putative class members’ claims arose from a common nucleus of operative facts involving the formulation, manufacture, and sale of Behr’s allegedly defective products. Thus, given this state’s liberal interpretation of CR 23, the trial court did not abuse its considerable discretion by finding that the putative class had satisfied the CR 23(b)(3) predominance requirements and by certifying this class under that provision.

12 13 14

113 Wn. App. at 323.

15 16 17 18 19 20 21 22 23 24

That Court rejected Behr’s argument that “multiple disparate incidents” could not form a class: The core of the putative class’s claims was that Behr’s products were defective and that Behr’s product labeling was inadequate. In essence, the putative class claimed that Behr had engaged in a “ ‘common course of conduct’ ” toward all potential class members in the formulation, manufacture, and sale of the challenged products.

Id. at 322.

Similarly, the court in Sitton v. State Farm, 116 Wn. App. 245, 254, 63 P.3d 198 (Div. 1 2003) explains: The predominance requirement is not a demand that common issues be dispositive, or even determinative; it is not a comparison of court time needed to adjudicate MOTION FOR CLASS CERTIFICATION - 23

STRITMATTER KESSLER KOEHLER MOORE 3600 15th Ave West, Suite 300 | Seattle, WA 98119 Tel: 206-448-1777

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22

common issues versus individual issues; nor is it a balancing of the number of issues suitable for either common or individual treatment. Rather, [a] single common issue may be the overriding one in the litigation, despite the fact that the suit also entails numerous remaining individual questions.

Id. at 254 (quotations omitted). Courts have a variety of methods for dealing with individual damages issues that do not affect the decision of whether or not to certify a class, such as subclasses and test cases. Id. at 255.

Here, Defendants made the exact same misrepresentations to all class members. Common facts predominate if not entirely comprise class issues.

2. Superiority.

Similarly, the CR 23(b)(3) requirement “that a class action is superior to other available methods for the fair and efficient adjudication of the controversy” “focuses upon a comparison of available alternatives.” Sitton, 116 Wn. App. at 256. Courts recognize superiority on multiple public policy grounds.

First, class actions are superior on smaller claims: “A primary purpose of class actions lawsuits, particularly money damages claims aggregated under 23(b)(3), is to enable the litigation of claims that are worth too little money to be pursued individually.” 2 Newberg and Rubenstein on Class Actions § 4:65 (6th ed.) (citing Amchem Products, Inc. v. Windsor, 521 U.S. 591, 617, 117 S. Ct. 2231, 138 L. Ed. 2d 689 (1997)). As described above, many individual recoveries here may otherwise be “negative value claims”—too small to pursue economically.

Second, class actions are superior for laws that “rely in large part on private enforcement,” as “the Supreme Court has long recognized that public agencies cannot themselves detect and deter all wrongdoing. Private suits are an important complement to public enforcement.” 2 Newberg and Rubenstein on Class Actions § 4:66 (6th ed.) (citing Newman v. Piggie Park Enterprises, Inc.,

23 24

MOTION FOR CLASS CERTIFICATION - 24

STRITMATTER KESSLER KOEHLER MOORE 3600 15th Ave West, Suite 300 | Seattle, WA 98119 Tel: 206-448-1777

1

390 U.S. 400, 401, 88 S. Ct. 964, 19 L. Ed. 2d 1263 (1968) (per curiam)). As cited above,

2

Washington’s Supreme Court has emphasized the public policy behind CPA class actions.

3

Third, class actions promote efficient resolution of claims compared to a flood of individual

4

suits. The Federal Advisory Committee Notes observe that class actions are appropriate when they

5

“achieve economies of time, effort, and expense[.]” 2 Newberg and Rubenstein on Class Actions

6

§ 4:67 (6th ed.) (citing Advisory Committee Note to 1966 Amendments, 39 F.R.D. 69, 102

7

(1966)). See also Wolin v. Jaguar Land Rover North America, LLC, 617 F.3d 1168, 1176 (9th Cir.

8

2010) (“Proposed class members face the option of participating in this class action, or filing

9

hundreds of individual lawsuits that could involve duplicating discovery and costs that exceed the

10

extent of proposed class members’ individual injuries. Thus, classwide adjudication of appellants’

11

claims is superior to other means of adjudicating this case.”). Here, claims of all sizes will benefit

12

from a classwide determination of Defendants’ CPA liability.

13 14

Though no further analysis is necessary, CR 23(b)(3) does identify matters pertinent to predominance and superiority:

15

(A) the interest of members of the class in individually controlling the prosecution

16

or defense of separate actions;

17

(B) the extent and nature of any litigation concerning the controversy already

18

commenced by or against members of the class;

19

(C) the desirability or undesirability of concentrating the litigation of the claims in

20

the particular forum;

21

(D) the difficulties likely to be encountered in the management of a class action.

22 23 24

MOTION FOR CLASS CERTIFICATION - 25

STRITMATTER KESSLER KOEHLER MOORE 3600 15th Ave West, Suite 300 | Seattle, WA 98119 Tel: 206-448-1777

1

With respect to (A) and (B), Plaintiffs are unaware of any separate litigation on these same

2

claims – only attorneys who hope this action will spare their clients (past, current, and future)

3

needless delay, aggravation and expense.

4

As to (C), there is no valid reason to disperse or relocate this case. While Plaintiffs have

5

not sought the personal information of class members to respect their privacy, many if not most of

6

the law firms identified in Defendants’ list of class members practice primarily in King County.

7

Finally, Defendants have yet to identify any concrete difficulty in managing this case on

8

the narrow issues for which Plaintiffs seek certification. They have already identified the class

9

members and have their contact information. All either still are or very recently were covered by

10

Washington State or local government employer health plans.

11

Though Plaintiffs do not seek damages certification at this time, courts have fully certified

12

23(b)(3) classes with similar damages and far more complexity. To start, loss of use or value

13

calculations—like some claims here where Class members lost use of their funds—are a common

14

feature in class actions. See, e.g., Moeller v. Farmers Ins. Co., 173 Wn.2d 264, 267 P.3d 998

15

(2011); Elter v. USAA, 17 Wn. App. 2d 643, 487 P.3d 539 (Div. 2 2021). In Elter, the class

16

representative used a sampling of class members USAA provided to determine loss of use damages

17

for other class members. Id. at 650.

18

Authority, 181 Wn.2d 299, 332 P.3d 461 (2014), where the plaintiffs alleged they were improperly

19

denied health coverage benefits. Like Class members here being denied access to settlement funds,

20

denial of access to coverage was appropriate for class treatment.

Elter cites another class action, Moore v. Health Care

21

In Moore the defendant argued that the only damages available were out-of-pocket medical

22

expenses paid by class members or substitute health insurance. The Supreme Court rejected that

23

argument: “those who are wrongfully denied health benefits suffer damage even if they do not

24

MOTION FOR CLASS CERTIFICATION - 26

STRITMATTER KESSLER KOEHLER MOORE 3600 15th Ave West, Suite 300 | Seattle, WA 98119 Tel: 206-448-1777

1

incur direct out-of-pocket medical expenses during that particular time period.” Id. at 306.

2

Because “people who do not have health insurance do not obtain routine preventive care, which

3

results in deferred medical problems,” and sometimes “put off necessary care for urgent medical

4

issues.” Id.

5

Despite the complexities of individual medical issues, the Moore court approved

6

“aggregate proof of damages” for the class. Id. at 309. This served the purpose of class actions:

7

Class members with small claims would be unlikely to pursue their claims, and of course, absent class members would automatically be deemed to have no damages.

These results defeat the purpose of a class action, which is to provide relief for large groups of people with the same claim, particularly when each individual claim may be too small to pursue.

8 9 10

Id.

11

Courts have certified far more complex issues in analogous cases than what Plaintiffs seek

12

at this juncture: certification on identical conduct, under the same law, involving the same parties,

13

in a specific geographical area, with identified class members, in a specific window of time. This

14

is as straightforward as class actions get.

15

VI.

CONCLUSION

16

This case epitomizes what class actions and issue classes are for, and what the CPA is for.

17

It is a class to enforce (1) Washington’s express public policy protecting tort victims, (2)

18

Washington’s express public policy applying the CPA to subrogation practices and insurance

19

duties of good faith, and (3) Washington’s express public policy favoring CPA class actions to

20

protect the public. Plaintiffs’ motion should be granted.

21 22

VII.

PROPOSED ORDER

A proposed order accompanies this Motion.

23 24

MOTION FOR CLASS CERTIFICATION - 27

STRITMATTER KESSLER KOEHLER MOORE 3600 15th Ave West, Suite 300 | Seattle, WA 98119 Tel: 206-448-1777

1

DATED this 10th day of January, 2025.

2

I certify that this memorandum contains 7,242 words in compliance with LCR 56 pursuant to Court-ordered briefing schedule – see also Plaintiffs’ Motion for Clarification

3 4

STRITMATTER KESSLER KOEHLER MOORE

5 6

/s/Andrew Ackley Andrew Ackley, WSBA#41752 Paul Stritmatter, WSBA#4532 Lisa Benedetti, WSBA#43194 Counsel for Plaintiffs 3600 15th Ave W Ste. 300 Seattle, WA 98119 (206) 448-1777

7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24

MOTION FOR CLASS CERTIFICATION - 28

STRITMATTER KESSLER KOEHLER MOORE 3600 15th Ave West, Suite 300 | Seattle, WA 98119 Tel: 206-448-1777

1

CERTIFICATION

2

I hereby certify that a copy of the foregoing document was served on the interested

3 4 5 6 7 8 9 10 11 12 13 14 15 16

parties in this action in the manner described as follows: Jeffrey M. Wells Williams, Kastner & Gibbs PLLC 601 Union Street, Suite 4100 Seattle, WA 98101-2380 Phone: (206) 628-6600 Email: jwells@williamskastner.com Attorneys for Defendants Multiplan, Inc. and Regence Blueshield

U.S. Mail Fax Legal messenger Electronic Delivery

Errol J. King, Jr. Katherine C. Mannino Taylor J. Crousillac Brittany H. Alexander Phelps Dunbar 400 Convention Street, Suite 1100 Baton Rouge, LA 70802 Email: errol.king@phelps.com katie.mannino@phelps.com taylor.crousillac@phelps.com brittany.alexander@phelps.com Pro Hac Vice Attorneys for Defendants Multiplan, Inc. and Regence Blueshield

U.S. Mail Fax Legal messenger Electronic Delivery

DATED this 10th day of January, 2025.

17 /s/ Debra M. Watt Debra M. Watt Paralegal debbie@stritmatter.com

18 19 20 21 22 23 24

MOTION FOR CLASS CERTIFICATION - 29

STRITMATTER KESSLER KOEHLER MOORE 3600 15th Ave West, Suite 300 | Seattle, WA 98119 Tel: 206-448-1777