SUPERIOR COURT OF THE STATE OF CALIFORNIA
CENTRAL CIVIL WEST COURTHOUSE
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Coordination Proceeding
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SETTLEMENT AGREEMENT
Plaintiffs, by and through their counsel, and Defendant Tenet Healthcare Corporation hereby enter into this Settlement Agreement, providing for settlement of claims herein described against Tenet, pursuant to the terms and conditions set forth below, and subject to the approval of the court in the California Action, as defined herein.
WHEREAS, Plaintiffs have filed class actions against Tenet alleging that Tenet charged uninsured and certain underinsured patients excessive, unconscionable, unfair and otherwise unlawful prices for prescription drugs and medical products and procedures received at hospitals or other medical facilities owned by Tenet and/or its subsidiaries;
WHEREAS, Plaintiffs have asserted that Tenet violated the Consumer Legal Remedies Act, Civ. Code § 1770, et seq., the Unfair Competition Law, Bus. & Prof. Code §§ 17200, et seq., and claims for Breach of Contract, Breach of Implied Covenant of Good Faith and Fair Dealing, Tortious Interference With Contract, Creation of an Involuntary Constructive Trust, and Unjust Enrichment and Restitution;
WHEREAS, Tenet has vigorously denied and continues to vigorously deny all of the aforementioned claims, denies any and all allegations of wrongdoing, fault, liability or damage of any kind to Plaintiffs and the putative class, denies that it acted improperly or wrongfully in any way, and believes that this litigation has no merit;
WHEREAS, Tenet has filed counterclaims for breach of contract, set-off, common count for work and labor, quantum meruit, and unjust enrichment/restitution against plaintiffs for failure to pay the amounts due and owing for treatment at Tenet-affiliated hospitals during the Class Period, and has reserved such claims against the putative plaintiff class;
WHEREAS, the parties to this Settlement Agreement have conducted a thorough examination and investigation of the facts and law relating to the matters set forth in the complaints filed in the subject legal actions and the claims set forth therein;
WHEREAS, Tenet has concluded that settlement is desirable in order to avoid the time and expense and the inherent uncertainties of defending protracted litigation and to resolve finally and completely the pending and potential claims of the Plaintiffs and all Settlement Class Members against Tenet;
WHEREAS, Plaintiffs and Class Counsel recognize the costs and risks of prosecuting this litigation and believe that it is in their interest, and in the interest of all members of the Settlement Class, to resolve finally and completely the pending and potential claims of the Plaintiffs and the Settlement Class against Tenet;
WHEREAS, arm’s-length, adversarial settlement negotiations have taken place between Class Counsel and Tenet over an extended period and, as a result, this Settlement Agreement has been reached, subject to Court approval;
WHEREAS, the undersigned parties believe that this Settlement Agreement offers significant benefits to the Settlement Class and is fair, reasonable, adequate and in the best interest of all members of the Settlement Class; and
WHEREAS, Tenet has agreed to class action treatment of the claims alleged in the California Action (as defined infra at Section I.D) solely for the purpose of effecting the compromise and settlement of those claims on a class basis as set forth herein.
NOW, THEREFORE, the undersigned parties stipulate and agree that all claims of the Plaintiffs and Settlement Class Members (as defined infra at Section I.GG) against Tenet (defined below as “Settled Claims” and/or “Released Claims”) shall be finally settled, discharged and resolved on the terms and conditions set forth below.
I. DEFINITIONS
As used in this Settlement Agreement, the following terms shall have the defined meanings set forth below. Where appropriate, terms used in the singular shall be deemed to include the plural and vice versa.
A. “Attorneys’ Fees and Expenses” means the settlement amounts approved by the Court for payment to Class Counsel (as defined infra at Section I.G), including attorneys’ fees, costs, litigation expenses, fees and expenses of experts, as well as any interest earned on monies allocable to such attorneys’ fees, costs and expenses.
B. “Authorized Claimant” means a Settlement Class Member whose claim has been allowed as provided by the terms of this Settlement Agreement and the Final Order and Judgment of Dismissal of the Court approving the Settlement.
C. “Available Assets” include cash, bank accounts, securities, real estate, and motor vehicles.
D. “California Action” means the thirteen (13) actions[1] that were filed in California courts on behalf of uninsured and certain insured patients against Defendant Tenet, and which cases were subsequently coordinated in the Superior Court of the County of Los Angeles, as Tenet Healthcare Cases II, J.C.C.P. No. 4289.
E. “Claim Form” means the claim and release form, substantially in the form set forth in Exhibit A to this Settlement Agreement, which form must be timely and fully completed and submitted by each Settlement Class Member who wishes to receive payment of cash settlement benefits under the terms of this Settlement Agreement.
F. “Claims Administrator” means the qualified third party selected by the Parties and approved by the Court in the Preliminary Approval Order to administer the Settlement, including implementing the Notice. The Parties agree to recommend that the Court appoint Garden City Group as Claims Administrator.
G. “Class Counsel,” “Plaintiffs’ Co-Lead Counsel,” “Counsel for Plaintiffs and/or Counsel for the Class” means Steve W. Berman and Ivy D. Arai, Hagens Berman Sobol Shapiro LLP, 1301 Fifth Avenue, Suite 2900, Seattle, Washington 98101; Reed R. Kathrein and Jacqueline E. Mottek, Lerach Coughlin Stoia Geller Rudman & Robbins LLP, 100 Pine Street, Suite 2600, San Francisco, California 94111; and Michael McShane, Alexander Hawes & Audet LLP, 300 Montgomery Street, Suite 400, San Francisco, CA 94104.
H. “Class Period” means June 15, 1999 through December 31, 2004.
I. “Class Representatives” means Cynthia Wall Jervis, Lauren Bishop, Averil Empson, Raquel Delgadillo, Andrea Wallace, Sylvia Castro, and Karyn Walker.
J. “Class Settlement” means the terms of the settlement provided in this Settlement Agreement.
K. “Collection Action” means any activity by which a Tenet Hospital, a designated agent or assignee of the Hospital, or a purchaser of the patient account, requests payment for services from a patient or a patient’s guarantor. Collection actions include pre-admission or pretreatment deposits, billing statements, letters, electronic mail, telephone and personal contacts related to Hospital bills, court summonses and complaints, and any other activity relating to collecting a Hospital bill.
L. “Court” means the Superior Court of the State of California, County of Los Angeles.
M. “Defendants” means Tenet Healthcare Corporation (together with its subsidiaries), and all hospitals owned and/or operated by Tenet and/or its subsidiaries during the Class Period.
N. “Effective Date” means the date three business days after the date on which the Settlement and Final Order have become "Final" in that all of the following conditions have been satisfied: (1) the Final Order has been entered; and (2)(a) if an appeal, review or reconsideration is not sought from the Final Order, the expiration of the time for the filing or noticing of any appeal, petition for review or motion for reconsideration; (2)(b) if an appeal, review or reconsideration is sought from the Final Order, the date on which the Final Order is affirmed and is no longer subject to judicial review or the date on which the appeal, petition for review or motion for reconsideration is dismissed or denied and the Final Order is no longer subject to judicial review.
O. “Effective Date of Eligibility” is the date on which medical treatment is initiated.
P. “Fairness Hearing” means the final hearing(s) scheduled by the Court in the California Action, after proper notice, to determine whether to approve this Settlement Agreement.
Q. “Federal Poverty Income Guidelines” are published annually by the United States Department of Health and Human Services.
R. “Final Order” means the last of the orders and final judgment of California Court dismissing the California Action with prejudice as to Tenet and approving this Settlement Agreement, substantially in the form of Exhibit B hereto.
S. “Gross Charge” is the list price on a hospital chargemaster.
T. “Judgment” means the judgment to be rendered by the Court, substantially in the form attached hereto as Exhibit B.
U. “Notice” means the Court-approved form of notice of this Settlement Agreement to the Settlement Class, substantially in the form of Exhibit C hereto.
V. “Notice and Claims Administration Expenses” means all reasonable costs and expenses incurred in connection with preparing, printing, mailing and publishing the Notice, processing claims, and administering the Settlement.
W. “Notice Plan” means the program, described in Exhibit D hereto, for disseminating Notice to the Settlement Class.
X. “Parties” means the Plaintiffs and Defendants.
Y. “Plaintiffs” means all plaintiffs in the California Action.
Z. “Preliminary Approval Order” means the order of the California Court, substantially in the form of Exhibit E to this Settlement Agreement, granting preliminary approval of this Settlement Agreement and authorizing the Notice.
AA. “Related Actions” means the following actions, which have substantially similar claims and allegations as the California Action: (1) Wright v. Tenet Healthcare Corp., et al., No. 002365 (Ct. Common Pleas, Philadelphia County, PA); (2) Garcia v. Tenet Healthcare Corp., et al., No. 03 008646 CA 18b (Broward County, FL); (3) Wade v. Tenet Healthcare Corp., et al., No. Ct -000250-03 (Cir. Ct., Shelby County, 13th Judicial District, Tenn.).
BB. “Related Parties” means the Defendants and all of their past and present officers, directors, agents, designees, servants, sureties, attorneys, employees, parents, associates, controlling or principal shareholders, general or limited partners or partnerships, subsidiaries, divisions, affiliates, insurers, and all predecessors or successors in interest, assigns, or legal representatives.
CC. “Released Claims” means and includes any and all claims, demands, rights, damages, obligations, suits, debts, liens, contracts, agreements and causes of action of every nature and description whatsoever, ascertained or unascertained, suspected or unsuspected, existing or claimed to exist, including unknown claims (as described in Section VII.C below), of the Plaintiffs and all Settlement Class Members that were or could have been brought against the Defendants and the Related Parties, or any of them, from the beginning of the Class Period to the Effective Date of the Settlement Agreement, based upon or related to any charges incurred, or any billing, pricing or collection activity, in connection with any treatment or service received at any hospital or medical facility of any kind owned or operated by Tenet and/or its subsidiaries. Released claims do not include claims for personal injury or medical malpractice or other claims related to the quality or standard of care provided to patients.
DD. “Released Parties” or “Released Party” means the Class Representatives and the Defendants and their Related Parties.
EE. “Settlement Agreement” or “Agreement” means this Settlement Agreement and the exhibits attached hereto.
FF. “Settlement Class” means all Tenet Patients Nationwide (as defined below in Section I.LL.) who either (1) had no health insurance at the time of treatment (the “Uninsured”); or (2) had health insurance at the time of treatment, but made (or were asked to make) co-payments or deductibles based on a percentage of the Gross Charge (the “Underinsured”).
GG. “Settlement Class Members” means all persons who are members of the Settlement Class except for those persons who validly request exclusion from the Class Settlement (i.e., "opt out") as provided in the Notice and the Settlement Agreement.
HH. “Settling Parties” or “Settling Party” includes all Settlement Class Members and the Defendants and their Related Parties.
II. “Summary Notice” means the notice substantially in the form of Exhibit F hereto.
JJ. “Tenet” means Tenet Healthcare Corporation together with its subsidiaries and all hospitals owned and/or operated by Tenet and/or its subsidiaries during the Class Period.
KK. “Tenet Hospital” or “Tenet Hospitals” means any and all general acute care hospitals in the United States that are owned and/or operated by Tenet and/or its subsidiaries;
LL. “Tenet Patients Nationwide” means all patients who were treated at a Tenet-affiliated hospital during the Class Period – i.e., all patients who were treated at one the hospitals identified on Exhibit G hereto during the time period assigned to each hospital (the period of time during the Class Period in which the hospital was owned and/or operated by Tenet and/or its subsidiaries).
II. REQUIRED EVENTS
Promptly after the execution of this Settlement Agreement by all of the undersigned:
A. Class Counsel shall notify the California Court that Plaintiffs and Tenet have reached a settlement and are preparing settlement documents for submission to the Court.
B. Class Counsel shall take all necessary steps to obtain approval of the Settlement Agreement and, having done so, shall take all necessary steps consistent with this Settlement Agreement to obtain judicial approval of the Class Settlement and the dismissal with prejudice of the California Action, including each of the thirteen (13) individual actions that were coordinated in the Los Angeles County Superior Court as Tenet Healthcare Cases II, J.C.C.P. No. 4289, as well as each of the Related Actions. As part of the approval process, the parties agree to cooperate and use their best efforts to describe and establish the benefits of the Settlement to the Settlement Class.
C. To effectuate the requirements of Paragraph II.B above, Class Counsel, on behalf of the parties to this Settlement Agreement, shall submit the Settlement Agreement to the California Court for Preliminary Approval, and the parties shall jointly move for one or more orders in substantially the same form as Exhibit E (“Preliminary Approval Order(s)”), which by their terms shall:
1. Preliminarily approve the terms of the Class Settlement;
2. Conditionally certify the Settlement Class for settlement purposes only;
3. Determine or approve the Notice to be given to the Settlement Class advising them of the Class Settlement and of the Fairness Hearing to be held to determine the fairness, reasonableness and adequacy of the Class Settlement;
4. Approve the Claims Administrator; and
5. Schedule hearings to review comments regarding the Class Settlement and to consider the fairness, reasonableness and adequacy of the Class Settlement and the application for an award of attorneys’ fees and reimbursement of expenses, and to consider whether the Court should issue a Final Order (in substantially the form attached as Exhibit B) approving the Class Settlement, dismissing the California Action with prejudice as to Tenet and ruling upon whether in negotiating Plaintiffs’ attorneys’ fees and expenses there was a fair and reasonable balance of the interests of the plaintiffs’ and the plaintiffs’ attorneys.
D. Class Counsel and Tenet will cooperate to undertake all reasonable actions in order to accomplish the above. In the event that the California Court fails to grant Preliminary Approval or fails to issue a Final Order, Class Counsel and Tenet agree to use all reasonable efforts, consistent with this Settlement Agreement, to cure any defect identified by the Court.
E. Class Counsel and Tenet will use all reasonable efforts, consistent with this Settlement Agreement, to promptly obtain a Final Order.
III. SETTLEMENT TERMS
A. Injunctive Relief
1. Financial Counseling. Tenet Hospitals will provide financial counseling, as described below, free of charge to all patients seeking treatment at Tenet Hospitals. The ability to obtain and the provision of such financial counseling shall be communicated to patients in plain, simple English (or Spanish where appropriate), subject to the Emergency Medical Treatment and Labor Act ("EMTALA") and other applicable legal requirements. Tenet Hospitals shall provide training to hospital financial counselors regarding financial aid availability and how to sufficiently communicate that availability to patients. Financial counseling for uninsured patients shall include information concerning the following:
· The right to apply for financial assistance and charity care programs, including local, state, and federal heath care programs such as Medicaid, and their obligations for completing eligibility documentation for such assistance, including providing all required residency, family income, and available assets verification; providing all necessary documentation relating to Medicaid enrollment or the denial of Medicaid enrollment; and informing the Hospital of changes in family income and/or insurance status.
· Subject to EMTALA and other applicable legal requirements, uninsured patients shall be informed of their right to be referred to a designated employee charged with responsibility for financial counseling regarding applying for financial assistance programs. An employee of the Hospital will be charged with responsibility of this function at each hospital.
· Whenever possible and consistent with EMTALA and other applicable legal requirements, the estimated potential financial obligations they may incur;
· The right to settle their accounts through a schedule of regular payments if determined ineligible for government health care programs, charity care or other financial assistance;
· The right to a determination on the financial assistance application as soon as reasonably possible following the submission of a completed application, including verification of family income;
2. Fair Treatment. Uninsured patients at Tenet Hospitals will be treated fairly and with respect during and after treatment, regardless of their ability to pay for the services they receive. An employee of the Hospital, by title, shall be assigned responsibility to monitor the terms of this paragraph.
3. Charity Care/Government Assistance Programs.
a. A Tenet Hospital shall not bill or attempt to collect fees (other than applicable co-payments associated with certain charity care programs) from a patient who has applied for financial assistance and submitted all of the required documentation, while an eligibility determination on the patient’s completed application is pending.
b. If a patient fully completes an application for financial assistance and submits all of the required documentation after a Collection Action has been initiated, the Hospital, or any designated agent, assignee, or contractor, shall suspend all Collection Actions until an eligibility determination is made as to the patient’s application for financial assistance. If the patient is determined to be eligible for financial assistance, any money he or she has paid for any medical treatment shall be refunded (other than applicable co-payments associated with certain charity care programs). In addition, if the patient is determined to be eligible for financial assistance, the Hospital, or any designated agent, assignee, or contractor shall request in a timely manner that any credit reporting agencies remove any adverse information reported and appearing on the patient’s credit report as a result of the Collection Action.
c. Every Tenet Hospital shall provide notification of the availability of government assistance programs and other financial assistance as follows:
· As part of the financial counseling process as described above;
· Subject to EMTALA and other applicable legal requirements, through the posting of information that indicates that the hospital provides financial counseling to all uninsured patients, which includes help in understanding and applying for local, state and federal health care programs such as Medicaid;
· Where this option is available, the Hospital shall post on its website information that indicates that the hospital provides financial counseling to all uninsured patients, which includes help in understanding and applying for local, state and federal health care programs such as Medicaid;
· These postings shall be written in plain, simple English and Spanish (where appropriate);
· The Hospital shall provide training to all Financial Counselors regarding the hospital’s financial assistance policies and procedures.
4. Reasonable Payment Terms.
a. Tenet Hospitals will offer reasonable payment terms and simple, flexible payment schedules to all uninsured patients and to underinsured patients whose balance is in excess of one thousand ($1,000) dollars. Financial counseling and such flexible payment term plan information will be communicated to patients, whenever possible, before they leave a Tenet Hospital. Tenet Hospitals shall communicate reasonable payment terms to patients in plain, simple English and Spanish where appropriate.
b. No interest shall be charged in connection with any payment plan that is established and agreed to by the patient within one hundred and twenty (120) days of the time of treatment and discharge. For payment plans that are established after the period of 120 days following service and discharge, interest rates shall not exceed the allowable interest rate under applicable state law or 8% per annum, whichever is lower.
5. Collection Actions.
a. Tenet will follow a uniform written credit and collection policy. The policy sets forth in detail the process and time frames the hospital, or any designated agent, assignee, or contractor uses in its Collection Actions, including prototypes of copies of letters or other notices to be sent to patients.
b. No Hospital, or any designated agent, assignee, or contractor shall undertake any of the following Collection Actions in connection with any unpaid patient bill without the express approval of the Chief Financial or Chief Executive Officer of the hospital or other authorized and appropriate company representative:
1. Any action to foreclose on real property;
2. Any action to place a lien on any property;
3. Any action to garnish wages; and
4. Any action to attach or seize a bank account or any other personal property.
c. Before litigation may be initiated with respect to any uninsured patient account, the following criteria must be satisfied:
· There must be a minimum principal balance of $1,250.00. No lawsuit will be filed on a principal balance less than $1,250.00 unless specifically approved by the Law Department.
· The patient must be employed, or have another source of income that substantiates their ability to pay the debt without adverse financial impact upon the patient's ability to maintain the patient's household.
· All other known or possible alternative sources of payment must be exhausted before an account may be considered for collection via litigation.
· Prior to the referral of any uninsured patient account for litigation, an offer of settlement must be communicated or attempted to be communicated to the patient, and the fact of such communication or attempted communication must be documented.
· If collection litigation is filed against an uninsured patient and judgment obtained, collection counsel has a standing directive to not lien the primary residence of the patient.
d. An authorized and appropriate representative of Tenet shall approve the suitability of any designated agent, assignee, or contractor. Approval shall not be given unless the agent, assignee, or contractor expressly agrees to the requirements set out in the written credit and collection policy.
e. All written and verbal communications made by the Hospital or any designated agent, assignee, contractor, or purchaser of its accounts receivable that relate to a Collection Action shall be available in English and Spanish (where appropriate).
6. Disclosure of Potential Cost of Treatment to Patients. Tenet shall disclose, in plain simple English and Spanish (where appropriate), the estimated charges for any anticipated treatment required to be paid by any uninsured patient, as well as the associated medical supplies and pharmaceuticals for that patient, whenever possible in advance of that patient’s surgery or other required medical treatment, or in the event of emergency as soon as practicable after the surgery or other required procedure is complete.
7. Discounted Pricing for Uninsured Patients. Uninsured patients who receive treatment at Tenet Hospitals will be offered discounted pricing for the services provided at rates comparable to the hospital’s current managed care rates. In no instance will uninsured patients be charged more than the highest managed care rate (i.e., the highest arm’s-length negotiated rate between the Tenet Hospital and any managed care insurance plan) in place at the Tenet Hospital at the time of treatment. The rate charged will not necessarily be the highest managed care rate, but may be at the low or middle range of the Hospital’s managed care rates. These rates will be analyzed and established based upon competitive conditions at each Tenet Hospital and therefore may vary from hospital to hospital and may change over time. These rates will be available to all uninsured patients regardless of income level. On an annual basis during the period of this Agreement, each Tenet Hospital, either individually or on an aggregate basis through an employee of Tenet’s Patient Financial Services, shall certify in writing to Class Counsel that the appropriate rates have been offered to Uninsured patients as described herein.
8. Monitoring. A designated employee of the Hospital shall be responsible for the oversight of charity care and financial aid provided, and the discount pricing to the uninsured as well as the administration of the financial aid policy. The designated employee will determine annually whether additional financial aid policies or uninsured guidelines are needed.
9. Record Keeping. For a period of four years from the date of this Settlement Agreement, for any and all Tenet Hospitals, Tenet hereby agrees to retain the following records:
1. Copies of chargemasters, negotiated rates and agreements covering rates, to the extent such records are used in the ordinary course of business;
2. Copies of all Bills to Patients;
3. All items required to be published pursuant to this Settlement Agreement;
10. Certification of Compliance. For the purpose of monitoring and investigating compliance with the provisions of this Settlement Agreement the following shall occur: On an annual basis for a four year period following the Effective Date, Tenet shall serve Class Counsel with a certificate of compliance with the terms of this Settlement.
11. Scope of Agreement and Retention of Jurisdiction. The terms and requirements of this Injunctive Relief section of the Settlement Agreement (Section III.A), shall expire on that date four (4) years from the Effective Date. The terms and requirements of this Injunctive Relief section of the Settlement Agreement (Section III.A), shall not apply to any hospital that is not currently owned by Tenet and/or its subsidiaries or to any hospital that is subsequently sold by Tenet and/or its subsidiaries. Nothing in this Settlement Agreement shall require Tenet to take any action, or to refrain from taking any action, that would controvert in any way the spirit or provisions of any statute, regulation or other law of any kind. The Parties hereby agree that going forward Tenet shall be free to take whatever action may be required to ensure compliance with any statutes, regulations or laws, whether in existence now or coming into existence at some future time, even if such action may violate the terms of this Settlement Agreement, and Tenet shall not be held liable or subject to any claim for relief under the terms of this Settlement Action for any such action. Following the Effective Date, and during the four (4) year term of this Settlement Agreement, the Court shall retain jurisdiction over the Parties to this Settlement Agreement solely for purposes of addressing settlement administration matters and the enforcement of the terms of the Settlement Agreement.
B. Restitution
1. Uninsured Settlement Class Members Who Have Paid Tenet. Pursuant to the claims procedure outlined below, Tenet will reimburse any Uninsured Settlement Class Member who paid out-of-pocket over a certain percentage of the hospital’s Gross Charge rate for treatment received during the Class Period. The threshold percentage of the hospital’s Gross Charge rate varies depending on the year the Settlement Class Member received the treatment, as set forth in Table A:
Table A
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Year |
1999 |
2000 |
2001 |
2002 |
2003 |
2004 |
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Gross Charge |
82% |
75% |
70% |
67% |
67% |
75% |
A Settlement Class Member will be reimbursed whatever amount he or she paid above and beyond the percentage of the hospital’s Gross Charges set forth above. Restitution shall be limited to medically necessary services and excluded from the restitution process are charges paid for purely elective services which are not covered by insurance.
Attached as Exhibit H is a list of elective procedures presumptively not covered by this Agreement. However, a class member receiving such treatment who believes it was medically necessary may submit documentation seeking to establish such necessity. Tenet, the Claims Administrator and Class Counsel should confer with respect to such claims and either accept or reject the claim or, if no consensus can be reached, submit it to the Special Master for a binding resolution. A Settlement Class Member shall not be entitled to reimbursement pursuant to the terms of this Settlement Agreement unless he or she has paid out-of-pocket over and above the Gross Charge percentages identified above for all of the treatment he or she received at a Tenet hospital. In addition, the refund applies only to Hospital charges (i.e., amounts charged by the Hospital itself). Physician charges (i.e., amounts charged by doctors) are excluded from the refund process.
2. Uninsured Settlement Class Members Who Owe Tenet. For any Uninsured Settlement Class Member who owes but has not paid Tenet over and above the threshold Gross Charge amounts identified in Table A for any non-excluded services during the Class Period, pursuant to the claims procedure outlined below, Tenet will offer the Settlement Class Member a revised Hospital bill at the discounted percentage of the Hospital’s Gross Charges by year, as set forth in Table A. All revised, discounted bills shall be subject to the terms and conditions concerning payment, collections and financial assistance set forth in this Agreement.
3. Underinsured Co-Pay Cy Pres Relief. To redress Underinsured Settlement Class Members who may have paid or been charged based on Gross Charges for treatment during the Class Period, Tenet shall pay $4 million to use as cy pres relief in accord with California Code of Civil Procedure Section 384 and approval by the California Court. The cy pres relief shall be payable to a nonprofit organization recommended by plaintiffs and approved by the Court. Such payment shall be made on a date following the Effective Date as set forth in the Court’s Preliminary Approval Order. Tenet may object to the nonprofit organization recommended by plaintiffs if it has a good faith basis for doing so.
IV. NOTIFICATION TO SETTLEMENT CLASS MEMBERS
A. The Court-approved Claims Administrator shall be responsible for implementing the Notice to the Settlement Class.
B. Dissemination of Notice to the Settlement Class shall be accomplished pursuant to the Notice Plan, which shall be substantially in the form described in Exhibit D. The Claims Administrator, along with Class Counsel and Defendants, shall be responsible for, without limitation: (i) arranging for the publication and mailing of the Notice; (ii) responding to requests for the Notice; and (iii) administration of claims as set forth below. The Notice Plan shall comply with all applicable federal and state requirements. All Notice and Claims Administration Expenses shall be paid by Defendants.
C. Notice Plan Implementation
1. Confidentiality. The Claims Administrator (and any person retained by the Claims Administrator) shall sign a confidentiality agreement in a form agreed to by Class Counsel and Tenet, which shall provide that the names, addresses and other information about specific Settlement Class Members provided by either Tenet, Class Counsel or by individual Settlement Class Members shall all be treated as confidential and shall be used by the Claims Administrator only as required by this Settlement Agreement.
2. Publication Notice. The publication Notice shall be placed in major national and regional newspapers, periodicals and/or other related print media. The identification of such media shall be agreed to by Class Counsel and Tenet. The publication Notice shall be substantially in the same form as the exemplar submitted as Exhibit F. The publication of the Notice will begin on a date to be agreed upon by the parties so as to provide the best practical notice to the Settlement Class by achieving the necessary frequency and reach, as outlined in Exhibit D.
3. Internet Notice. The parties agree that the Notice shall be posted on the Internet Website of Tenet Healthcare Corporation, the Claims Administrator, and Class Counsel. The internet Notice shall be substantially in the same form as the exemplar submitted as Exhibit C. The Claims Administrator and Class Counsel shall post on their respective websites the Notice, the Preliminary Approval Order, the Settlement Agreement, and such additional information as counsel for the parties shall agree upon.
4. Individual Notice. The Claims Administrator or person(s) under the control and supervision of the Claims Administrator shall mail the Notice and Claim Form, by first-class postage prepaid U.S. Mail, to Uninsured members of the Settlement Class, as identified by Tenet. The mailed Notice shall be substantially in the same form as the exemplar submitted as Exhibit C. The Claims Administrator will review Tenet’s address data, check it for valid addresses, eliminate duplications and process the addresses through the National Change of Address database. Defendants shall provide to the Claims Administrator all available address information within Defendants’ patient database regarding the Uninsured members of the Settlement Class.
5. Notice and Claims Requests. The Claims Administrator shall also provide a copy of the Notice and Claim Form to anyone who requests the Notice and Claim Form.
6. Proof of Notice. The Claims Administrator shall provide affidavits to the California Court, with a copy to Class Counsel and Tenet, attesting to the measures undertaken to provide notice and claim forms to Settlement Class Members.
7. Costs of Notice and Administration. Defendants shall pay all Notice and Claims Administration Expenses.
V. CLAims administraTion
A. Members of the Settlement Class shall receive a notice that informs them that if they were uninsured and paid hospital charges at a Tenet hospital during the Class Period, they may be entitled to a refund. Members of the Settlement Class will also be notified that even if they did not pay the charges they incurred for treatment at a Tenet hospital during the Class Period, they nevertheless may be entitled to a revised and reduced bill pursuant to the terms of this Settlement Agreement. Such Settlement Class Members will be provided a toll-free number to call to request a determination of whether they are entitled to a revised bill.
B. Members of the Settlement Class who believe they are entitled to a cash refund will be directed to send to the Claims Administrator the Claim Form, in substantially the form attached hereto as Exhibit A. The Claim Form will be available on the Internet websites of Tenet Healthcare Corporation, the Claims Administrator, and Class Counsel, as well as through direct contact with the Claims Administrator. Upon receiving a Claim Form from a potential claimant, the Claims Administrator will promptly send a copy of the Claim Form to a designated Tenet employee. Tenet shall then send the Claims Administrator a calculation with supporting documentation confirming and/or denying the Class Member’s entitlement to restitution. The Claims Administrator shall independently review this calculation and if agreement is reached and restitution owed, a refund will be sent the Authorized Claimant by Tenet within 90 days. This entire process shall take no more than 180 days from receipt of the claim.
C. The Claim Form, in substantially the form attached hereto as Exhibit A, will be presented to the Court for approval. The Claim Form will not require proof of treatment, payment or uninsured status, other than the class members’ signature under oath.
D. All Claim Forms must be submitted by the date set forth in the Court’s Preliminary Approval Order and as specified in the Notice. Any Settlement Class Member who fails to submit a Claim Form by such date shall be forever barred from receiving any payment pursuant to this Settlement Agreement, but shall in all other respects be bound by the terms of this Settlement Agreement and by the final judgment entered in the California Action. A Claim Form shall be deemed to have been submitted when posted, if received with a postmark indicated on the envelope and if mailed first-class postage prepaid and addressed in accordance with the instructions contained in this Settlement Agreement. In all other cases, the Claim Form shall be deemed to have been submitted when actually received by the Claims Administrator, or its designee.
E. In the event the Claims Administrator does not agree with Tenet as to the amount owed to a claimant, counsel for the Parties shall be so notified. A list of such disputes shall be submitted to counsel at the end of each month during the claims period. If the disputed accounts cannot be resolved within 60 days, the dispute shall be submitted to a special master who will be appointed by the Court and whose rulings shall be binding for resolution. The special master’s fees shall be paid by Tenet.
F. Claim Forms that do not meet the requirements set forth in this Settlement Agreement and in the Claim Form instructions shall be rejected. This shall include, but is not limited to, failures to accurately provide requested information, including the necessary patient-identifying information. The data within Tenet’s patient accounting system shall be the deciding and controlling factor in adjudicating the claims of potential claimants pursuant to this Settlement Agreement. If Tenet’s records and data do not reflect that a particular claimant was treated at a Tenet hospital during the Class Period, or otherwise do not indicate that the claimant is entitled to restitution pursuant to the terms of this Settlement Agreement, then the claim shall be denied, unless the potential claimant comes forward with sufficient documentation to establish proof of treatment, uninsured status and payment out-of-pocket above the threshold Gross Charge amounts set forth herein. The Claims Administrator shall notify, in a timely fashion and in writing, any claimant whose Claim Form has been rejected, setting forth the reasons therefore, and shall include in such notice that the claimant whose claim is rejected has the right to modify and resubmit the Claim Form, if such Claim Form was rejected for failure to provide necessary information, and/or have a review by the special master if the claimant so desires and complies with the requirements of subparagraph G below. The Claims Administrator shall provide in a timely fashion to Class Counsel and counsel for Defendants copies of all rejection notices.
G. If any claimant whose claim has been rejected desires to contest such rejection, the claimant must, within thirty (30) calendar days after the date of mailing of the notice required in subparagraph F above, serve upon the Claims Administrator a notice and statement of reasons indicating the claimant's grounds for contesting the rejection along with any supporting documentation, and requesting review by the special master of the denial of the claim. If the dispute concerning a claim cannot otherwise be resolved by Tenet, Class Counsel and the Claims Administrator, the disputed claim shall be presented to the special master for final determination.
H. Once a Claims Administrator is appointed, the parties shall meet and develop a protocol as to how the restitution amounts shall be confirmed and what types of documentation will be utilized by Tenet and the Claims Administrator. Based upon the advice of the claims agent, the process outlined in Paragraphs V.A-G above may be modified by agreement of the parties or order of the Court.
I. No payments shall be made pursuant to this Settlement Agreement until after the Effective Date. All payments of settlement awards shall be issued no later than the date specified in the Court’s Preliminary Approval Order.
J. No person shall have any claim against Defendants or any of the Related Parties, the Plaintiffs, the Settlement Class, Class Counsel, or the Claims Administrator based on any eligibility determinations, distributions or payments made in accordance with this Settlement Agreement. This provision does not affect or limit in any way the right of review by the Court of any disputed Claim Forms or determinations of the amount of any settlement award payments, to the extent provided above.
K. If this Settlement Agreement is not approved or for any reason the Effective Date does not occur, no payments or distributions of any kind shall be made pursuant to this Settlement Agreement.
L. All proceedings with respect to the administration, processing and determination of claims described in this Settlement Agreement and the determination of all controversies relating to this Settlement Agreement, including disputed questions of law and fact with respect to the validity of claims, shall be subject to the jurisdiction of the California Court.
VI. objections AND OPT OUTS by settlement class members
A. Any Settlement Class Member who intends to object to the fairness, reasonableness and adequacy of the Class Settlement (hereinafter “Objections”) must file a written Objection with the Claims Administrator and mail a copy to Tenet and Class Counsel at the address set forth below postmarked not later than the date specified in the Court’s Preliminary Approval Order. Settlement Class Members making Objections must set forth their full name, current address and telephone number. Objections must be served:
Upon Tenet at:
Rod J. Stone
Samuel G. Liversidge
GIBSON, DUNN & CRUTCHER LLP
333 South Grand Ave., Suite 4900
Los Angeles, CA 90071
Upon Class Counsel at:
Steve W. Berman
Ivy D. Arai
HAGENS BERMAN SOBOL SHAPIRO LLP
1301 Fifth Avenue, Suite 2900
Seattle, WA 98101
Reed R. Kathrein
Jacqueline E. Mottek
LERACH COUGHLIN STOIA GELLER RUDMAN
& ROBBINS LLP
100 Pine Street, Suite 2600
San Francisco, CA 94111
Michael McShane
ALEXANDER HAWES & AUDET LLP
300 Montgomery Street, Suite 400
San Francisco, CA 94104
B. Objecting class members must state in writing all Objections and the reasons therefore, and a statement whether the Objector intends to appear at the Fairness Hearing(s) either with or without separate counsel. No member of the Settlement Class shall be entitled to be heard at the Settlement Fairness Hearing (whether individually or through separate counsel) or to object to the Settlement Agreement, and no written objections or briefs submitted by any member of the Settlement Class shall be received or considered by the Court at the Settlement Fairness Hearing, unless written notice of the class member’s intention to appear at the Settlement Fairness Hearing and copies of any written objections or briefs shall have been filed with the Court and served on counsel for the Parties on or before the date specified in the Preliminary Approval Order and Notice. Members of the Settlement Class who fail to file and serve timely written objections in the manner specified above shall be deemed to have waived any objections and shall be foreclosed from making any objection (whether by appeal or otherwise) to the Settlement Agreement.
C. Members of the Settlement Class may elect to opt out of this Settlement Agreement, relinquishing their rights to benefits hereunder. Members of the Settlement Class who opt out of the Settlement will not release their claims under Section VII below. Class members wishing to opt out of the Settlement must send to the Claims Administrator a letter including their name, address, and telephone number and providing a clear statement communicating that they elect to be excluded from the Settlement Class, do not wish to be a Settlement Class Member and elect to be excluded from any judgment entered pursuant to this Settlement Agreement. Any request for exclusion or opt-out must be postmarked on or before the opt-out deadline provided in the Court’s Preliminary Approval Order and the Notice. The date of the postmark on the return mailing envelope shall be the exclusive means used to determine whether a request for exclusion has been timely submitted. Members of the Settlement Class who fail to submit a valid and timely request for exclusion on or before the date specified in the Preliminary Approval Order and Notice shall be bound by all terms of the Settlement Agreement and the Final Order and Judgment, regardless of whether they have requested exclusion from the Settlement.
D. Any member of the Settlement Class who submits a timely request for exclusion or opt-out may not file an Objection to the Settlement and shall be deemed to have waived any rights or benefits under this Settlement Agreement.
E. Not later than (3) business days after the deadline for submission of requests for exclusion or opt-out, the Claims Administrator shall provide to Class Counsel and Tenet’s counsel a complete opt-out list together with copies of the opt-out requests. Notwithstanding any other provision of this Settlement Agreement, if more than one thousand (1,000) members of the Settlement Class "opt out" of the settlement, Defendants, in their sole discretion, may rescind and revoke the entire settlement and this Settlement Agreement, thereby rendering the settlement void in its entirety, by sending written notice that Defendants revoke the settlement pursuant to this paragraph to Class Counsel within fifteen (15) days following the date the Claims Administrator informs Defendants of the number of Settlement Class members who have requested to "opt out" of the settlement pursuant to the provisions set forth above.
F. Upon expiration of the deadline for filing claims, objections and/or requests for exclusion from the settlement as set forth in the Preliminary Approval Order and Notice, and on the date set forth in the Preliminary Approval Order, a settlement Fairness Hearing shall be conducted to determine final approval of the settlement along with the amount properly payable for attorneys’ fees, costs and expenses. Upon final approval of the settlement by the Court at or after the settlement Fairness Hearing, the Parties shall present the Final Order and Judgment, substantially in the form attached to this Settlement Agreement as Exhibit B, to the Court for approval and entry.
VII. Releases, dismissal of action and jurisdiction of court
A. It is hereby agreed that upon the Effective Date, the Plaintiffs and all Settlement Class Members and their heirs, executors, estates, predecessors, successors, assigns, agents and representatives shall be deemed to have jointly and severally released and forever discharged Defendants and the Related Parties from any and all Released Claims, whether known or unknown, and shall be fully and forever barred and enjoined from instituting or prosecuting in any court or tribunal, either directly or indirectly, individually or representatively, any and all Released Claims against any of the Defendants or Related Parties.
B. Members of the Settlement Class who have opted out of the settlement by the date set by the Court do not release their claims and will not obtain any of the benefits of the Settlement.
C. California Notice Concerning Released Claims. The claims released, settled and compromised by this Settlement Agreement include known and unknown claims relating to the claims in this lawsuit, and this Agreement is expressly intended to cover and include all such injuries or damages, including all rights of action thereunder. Settlement Class Members hereby expressly, knowingly and voluntarily waive the provisions of Section 1542 of the California Civil Code, which provides as follows:
A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.
Settlement Class Members expressly waive and relinquish any and all rights and benefits which they may have under, or which may be conferred upon them by, the provisions of Section 1542 of the Civil Code, or any other law of any state or territory which is similar, comparable or equivalent to Section 1542, to the fullest extent that they may lawfully waive such rights or benefits pertaining to the Released Claims. In connection with such waiver and relinquishment, the Settlement Class Members hereby acknowledge that they are aware that they or their attorneys may hereafter discover claims or facts in addition to or different from those which they now know or believe to exist with respect to the Released Claims, but that it is their intention to hereby fully, finally and forever settle and release all of the Released Claims known or unknown, suspected or unsuspected, which they have against the Defendants or Related Parties. In furtherance of such intention, the release herein given by the Settlement Class Members to the Defendants and Related Parties shall be and remain in effect as a full and complete general release notwithstanding the discovery or existence of any such additional different claims or facts. Settlement Class Members are not releasing any claims for personal injury.
D. Tenet shall dismiss with prejudice all counterclaims asserted against Class Representatives for any treatment or service received during the Class Period. With respect to the Class Representatives, the Hospital, or any designated agent, assignee, contractor, or purchaser of the account, shall retract any adverse information reported to any credit reporting agencies as a result of any Collection Action in a timely manner within thirty (30) days of the Effective Date of this Settlement Agreement. Nothing in this Settlement Agreement shall preclude Tenet or any of its agents, assignees or contractors from instituting legal action against Settlement Class Members, other than the Class Representatives, for failure to pay amounts due and owing for treatment at Tenet hospitals during the Class Period, so long as such claims and actions are consistent with the terms and conditions of this Settlement Agreement.
E. Upon the Effective Date, the California Action shall be dismissed with prejudice as to Tenet.
F. Notwithstanding the above, the Court shall retain jurisdiction over the parties to the Settlement Agreement with respect to the future performance of the terms of the Settlement Agreement. In the event that any applications for relief are made, such applications will be made to the Court.
G. Upon the Effective Date: (i) the Settlement Agreement shall be the exclusive remedy for any and all Released Claims of Settlement Class Members; and (ii) the Released Parties shall not be subject to liability or expense of any kind to any Settlement Class Members, who shall be permanently barred and enjoined from initiating, asserting, or prosecuting against the Released Parties in any federal or state court or tribunal any and all Released Claims.
H. The Released Claims are the “Settled Claims” pursuant to this Settlement Agreement.
VIII. EFFECT OF DISAPPROVAL, CANCELLATION OR TERMINATION
A. In the event (i) the Court does not enter the Preliminary Approval Order specified in this Settlement Agreement; (ii) the Court does not finally approve the settlement as provided in this Settlement Agreement; (iii) the Court does not enter the Final Order and Judgment as provided in this Settlement Agreement; or (iv) the settlement does not become final for any other reason, and the Parties, in their sole and unfettered discretion following reasonable efforts, do not agree in writing to modify this Settlement Agreement and the Settlement is not consummated, this Settlement Agreement shall be null and void and any order or judgment entered by the Court in furtherance of this settlement shall be vacated nunc pro tunc.
B. In such a case, the Parties shall proceed in all respects as if this Settlement Agreement had not been executed. If the Settlement Class has been certified by the Court for the purpose of the Settlement, then that class certification will be null and void and the Defendants shall have the right to object to certification of the Settlement Class or any other class at any future time. In the event an appeal is filed from the Court’s Final Order and Judgment, or any other appellate review is sought prior to the Effective Date, administration of the settlement shall be stayed pending final resolution of the appeal or other appellate review.
IX. SETTLEMENT NOT EVIDENCE AGAINST PARTIES
A. In the event the Settlement Agreement is terminated according to its terms, (i) all negotiations, proceedings, documents prepared and statements made in connection herewith shall be without prejudice to the Settling Parties, shall not be deemed or construed to be an admission by any Settling Party of any act, matter or proposition and shall not be used in any manner or for any purpose in any subsequent proceeding in the Litigation or in any other action or proceeding; (ii) other than as expressly preserved by this Agreement in the event of its termination, this Agreement shall have no further force and effect with respect to any Settling Party and shall not be used in the Litigation or any other proceeding for any purpose; and (iii) any Settling Party may elect to move the Court pursuant to the provisions of this Paragraph, and none of the nonmoving Settling Parties (or their counsel) shall oppose any such motion.
B. Defendants and the Related Parties deny any and all charges alleged in the Litigation and deny all wrongdoing whatsoever. Whether or not the Settlement Agreement is finally approved, neither the Settlement Agreement, nor any document, statement, proceeding or conduct related to this Settlement Agreement, nor any reports or accounts thereof, shall in any event be disclosed or referred to for any purpose, or offered or received in evidence, in any further proceeding in the California Action, or any other civil, criminal or administrative action or proceeding against Defendants or any of the Related Parties except for purposes of settling this action pursuant to this Settlement Agreement. The limitations set forth in this paragraph do not apply to use and/or disclosure by Defendants or any of the Related Parties against members of the Settlement Class or third parties for purposes of supporting a defense or counterclaim of res judicata, collateral estoppel, release, good faith settlement, judgment bar or reduction or any other theory or claim of issue preclusion or similar defense or counterclaim.
X. Attorneys’ Fees and administrative Expenses
A. Class Counsel shall be entitled to apply to the Court for an award of attorneys’ fees, costs and expenses in a total amount not to exceed an amount determined by a neutral arbitrator selected by the parties. The fee amount determined by the arbitrator shall be within a range negotiated and agreed to by the parties. This amount is to be inclusive of all fees and costs for Class Counsel and all other counsel for plaintiffs in the California Action and the Related Actions. Class Counsel shall not be permitted to petition the Court for any additional payments for fees, costs, expenses or incentive awards, and the award shall be for all claims for attorneys’ fees, costs and expenses past, present and future incurred in the litigation. The actual amount of any award of attorneys' fees, costs, and expenses will be determined by the Court. The Parties negotiated over fees, costs and expenses only after reaching agreement upon all other material terms of this Settlement Agreement.
B. Defendants and their attorneys agree not to oppose any applications for attorneys’ fees, costs or expenses by Class Counsel so long as such applications are consistent with the provisions of this Settlement Agreement, and further agree to pay any amounts awarded by the Court that are within the range negotiated and agreed to by the parties.
C. Any attorneys’ fees, costs or expenses awarded by the Court to Class Counsel shall be paid by Tenet within ten (10) days of the Effective Date. Tenet shall make such payment to Steve W. Berman, at HAGENS BERMAN SOBOL SHAPIRO LLP, 1301 Fifth Avenue, Suite 2900, Seattle, WA 98101. Tenet shall have no liability or other responsibility for the allocation of such attorneys’ fees among and between Class Counsel or any other counsel for Plaintiffs. In the event that any dispute arises relating to the allocation of such fees, then Class Counsel agrees to hold Tenet harmless from any and all liabilities, costs and expenses.
D. Defendants' payment of Class Counsel’s attorneys’ fees, costs and expenses as described herein shall constitute full satisfaction of Defendants’ obligation to pay any person, attorney or law firm for attorneys’ fees, costs, and expenses incurred on behalf of the Plaintiffs and the Settlement Class, and shall relieve Defendants and the Related Parties from any other claims or liability to any other attorney or law firm or person for any attorneys’ fees, expenses and costs to which any of them may claim to be entitled on behalf of the Plaintiffs and the Settlement Class that are in any way related to the Released Claims.
E. The procedure for and the allowance or disallowance by the Court of any application for attorneys’ fees, costs, expenses, or reimbursement to be paid to Class Counsel are not part of the settlement of the Released Claims as set forth in this Settlement Agreement, and are to be considered by the Court separately from the Court’s consideration of the fairness, reasonableness and adequacy of the settlement of the Released Claims as set forth in this Settlement Agreement. Any such separate order, finding, ruling, holding or proceeding related to any such applications for attorneys’ fees, or any separate appeal from any separate order, finding, ruling, holding or proceeding relating to them or reversal or modification of them, shall not operate to terminate or cancel this Settlement Agreement, or constitute an event justifying a right to set aside this Settlement Agreement or otherwise affect or delay the finality of the Final Order and Judgment or the settlement of the Class Action, except as expressly provided in Paragraph F immediately below.
F. In the event that Class Counsel seek, request or apply for in any forum in connection with this Settlement an award of attorneys’ fees, costs and expenses that exceeds the fee determination made by the arbitrator within the range agreed to by the parties, as described in Paragraph A above, Defendants shall have the right, in their sole discretion, to terminate, cancel and/or set aside this Settlement Agreement, in which event this Settlement Agreement would become null and void. Plaintiffs and Class Counsel agree that no application for an award for fees and expenses in connection with the California Action or any of the Related Actions shall be submitted, filed or pursued in any other court or forum.
XI. related actions
A. Pending the Fairness Hearing and final resolution by the Court of this proposed Class Settlement, the Parties and their counsel agree to stay (and, if required by applicable court rules of practice, seeks stays of) all proceedings in each of the Related Actions, and not to commence or seek to prosecute, either directly or indirectly, any action or proceeding in any forum asserting any of the Settled Claims.
B. Within five (5) business days of the Effective Date, Class Counsel will take whatever action is necessary to dismiss with prejudice each of the Related Actions.
XII. CONFIDENTIAL Discovery materials
Within fifteen (15) days of the Effective Date, Class Counsel shall return to counsel for Defendants, or provide to counsel a certification under oath of the destruction of, all matter produced in discovery in the California Action that was designated as "Confidential" under the terms and conditions of either: (1) the Stipulation and Protective Order Governing the Disclosure of Health Information, entered October 7, 2003, or (2) the Stipulation and Protective Order Re Disclosure of Confidential Information, entered July 22, 2003.
XIII. representations, warranties and covenants
A. Class Counsel who are signatories hereof represent and warrant that they have the authority, on behalf of all Plaintiffs, including Class Representatives Cynthia Wall Jervis, Lauren Bishop, Averil Empson, Raquel Delgadillo, Andrea Wallace, Sylvia Castro, Karyn Walker, and representative plaintiff Congress of California Seniors, to execute, deliver, and perform this Settlement Agreement and to consummate the transactions contemplated hereby. Class Counsel further warrants and represents that they have authority to seek the dismissal with prejudice of each of the Related Actions, as contemplated above. This Settlement Agreement has been duly and validly executed and delivered by Class Counsel and Plaintiffs and constitutes their legal valid and bin