FILED
2025 APR 04 09:00 AM KING COUNTY SUPERIOR COURT CLERK E-FILED
CASE #: 23-2-18847-1 KNT
SUPERIOR COURT OF WASHINGTON FOR KING COUNTY
LYDIA ZOU, individually; BLAIR FLEMING, individually, Plaintiffs, v.
MULTIPLAN INC., a foreign corporation; REGENCE BLUESHIELD, a Washington corporation. Defendants. No. 23-2-18847-1 KNT
ORDER GRANTING PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION
This matter came before the Court on Plaintiffs’ Motion for Class Certification. The Court reviewed and considered Plaintiffs’ First Amended Complaint, Defendant’s Answer, the record herein, and the parties’ submissions in support and in opposition to the Motion including the following pleadings submitted by the parties:
1.Plaintiffs’ Motion for Class Certification;
2.Declaration of Andrew Ackley with Exhibits.
3.Declaration of Lydia Zou;
4.Declaration of Blair Fleming;
5.Defendants’ Opposition to Plaintiffs’ Motion for Class Certification;
6.Declaration of Errol J. King in Support of Opposition;
ORDER GRANTING PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION- 1
7.Declaration of Stefanie Franc;
8.Defendants’ Errata Substituting Signature Page on Defendants’ Opposition;_
9.Corrected Declaration of Errol J. King in Support of Opposition;
10.Plaintiffs’ Reply in Support of Motion for Class Certification, including Motion to Strike Exhibit H of King Declaration;
11.Declaration of Lisa Benedetti;
12.Declaration of Brad Fulton;
13.Defendants’ Surreply to Plaintiffs’ Reply; and
14.Plaintiffs’ Response to Defendants’ Objection to Motion to Strike.
THE COURT FINDS
as follows:
1.Plaintiffs seek certification of a Class 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.
2.Defendants have identified over 151 individuals meeting the class definition between 2020 and 2024.
3.Plaintiffs seek class certification on certain issues pertaining to the entire class pursuant to CR 23(c)(4)(A) (issue class certification).
4.Plaintiffs seek certification on these issues (“Class Issues”):
a.For declaratory relief establishing that class member plans are not ERISA plans. RCW 7.24 et seq.
b.To establish that Defendants’ conduct toward the Class violated the Consumer Protection Act (“CPA”) in that it was unfair or deceptive, occurred in trade or commerce, and affects the public interest. RCW 19.86.090
c.For injunctive relief prohibiting Defendants from such further violation of the CPA.
5.For the reasons set forth below, the Court finds that certification under CR 23(b)(3) is appropriate.
6.First, the class is so numerous that joinder of all members is impracticable. A class of 40 or more creates a rebuttal presumption that joinder is impracticable. This class involves nearly four times that. Defendants have not rebutted the presumption of impracticability.
7.Second, the Court finds that there are questions of law or fact common to the Class on the Class Issues. Defendants made similar if not identical ERISA lien claims as to every class member, all of whom Defendants have identified as having “government plans” under a federal law definition excluding those plans from ERISA. For the Class Issues, therearefew—if any—materialdistinctionsbetween class membersas itrelates to whether their health plans were government plans and whether Defendants stating they were ERISA plans violated the CPA. These issues are capable of class-wide resolution.
8.Third, the Court finds that Plaintiffs’ claims are typical of the other Class members for Class Issues. Like the Class, both had “government plans” and in both instances Defendants asserted the plans were ERISA plans. As between Plaintiffs and other Class members, Defendants’ alleged course of conduct is the same, and the claims are based on the same legal theories.
9.Fourth, the Court finds that Plaintiffs will fairly and adequately protect the interests of the Class on Class Issues. Plaintiffs possess the same interest in resolving the Class Issues as all other class members.
10.Under CR 23(b)(3), the Court also finds that common questions of law or fact predominate over questions affecting individual members as to Class Issues. There is
a common nucleus of operative facts in the type of health plans at issue (government plans), Defendants’ assertion of ERISA subrogation liens with respect to all class members, and whether that assertion violated the CPA.
11.Under CR 23(b)(3), a class action on Class Issues is superior to other available methods for fair and efficient adjudication of the controversy.
a.First, individual prosecution of these claims would likely be prohibitively expensive for many Class members. For example, some Class members have approximately $1,000 in claimed subrogation. The majority have subrogation liens of under $5,000. Compared with the cost of attorneys, the burden of discovery and pursuit of the claims, many such claims may never be brought.
b.Second, Washington has an express public policy favoring CPA class actions to enforce laws and protect the public, which favors class certification here.
c.Third, a class action on Class Issues is far more efficient than individual claims for the parties and court system.
12.In contrast, there is no competing litigation and no apparent interest from class members in controlling the prosecution of separate actions. Class members also have the option to opt out of the class should they choose.
13.Concentrating litigation in one county also assures efficiency and consistency of results. King County is an appropriate venue for Plaintiffs and there is no basis to transfer venue to another county.
14.There does not appear to be significant difficulties in managing the Class Issues. Defendants have identified class members and have recent contact information for all of them. The Class Issues are narrow.
15.The Court also finds that Plaintiffs’ counsel are experienced attorneys in tort litigation, subrogation, and class actions. They are well qualified to serve as Class Counsel.
Defendants have also failed to make a showing that any Plaintiffs’ counsel are necessary witnesses.
16.Defendants’ arguments against class certification mostly relate to whether and to what extent their ERISA lien notices caused damages—issues on which Plaintiffs do not seek certification.
17.Defendants’ arguments about causation, damages, the different plan language and the timing or sequencing of ERISA lien notices are similar to the arguments made in Sitton v. State Farm Mut. Auto. Ins. Co., 116 Wn. App. 245, 63 P.3d 198 (Div. 1 2003). The certified issues here are narrow and afford predominance. Defendants fail to address Sitton or other similar cases, and the Court is not persuaded that any of the issues raised materially affect predominance or any other class certification consideration.
IT IS HEREBY ORDERED as follows:
Plaintiffs’ Motion for Class Certification is GRANTED as follows.
1.Pursuant to CR 23(b)(3), the Court hereby certifies a Class 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.
2.Pursuant to CR 23(c)(4)(A), the Court certifies this Class as to the following issues:
A.Whether class member health plans are ERISA plans.
B.Whether Defendants’ conduct toward the Class violated the CPA in that it was unfair or deceptive, occurred in trade or commerce, and affects the public interest.
C.Whether Defendants should be enjoined from such further violation of the Consumer Protection Act (“CPA”), and the terms of such injunction, pursuant to RCW 19.86.090.
3.Plaintiffs are appointed Class Representatives for the Class Issues.
4.Plaintiffs’ counsel are appointed Class Counsel.
IT IS FURTHER ORDERED that the parties shall submit joint or separate proposed class notice(s) by motion no later than May 5, 2025. The parties are encouraged to work together on such a notice to minimize or eliminate disputed issues for the Court to resolve.
DATED this 3rd day of April 2025.
Presented by:
STRITMATTER KESSLER KOEHLER MOORE
/s/Andrew Ackley
Andrew Ackley, WSBA#41752
Paul Stritmatter, WSBA#4532
Lisa Benedetti, WSBA#43194
Counsel for Plaintiffs
JUDGE SUSAN AMINI
King County Superior Court Judicial Electronic Signature Page
CaseNumber: 23-2-18847-1 KNT
CaseTitle: ZOU ET ANO VS MULTIPLAN INC ET ANO
DocumentTitle: Order
DateSigned: 04/04/2025
Judge: Susan Amini
Key/IDNumber: *236555822*
PageCount: Thisdocumentcontains 6 page(s)plusthissignaturepage.