Lozano v. CodeMetro, Inc.

The Court directed that a Notice be provided because you have a right to know about a proposed Settlement that has been reached in this class action lawsuit and about your options before the Court decides whether to grant final approval to the Settlement. If the Court approves the Settlement, and after objections or appeals, if any, are resolved, the Settlement Administrator appointed by the Court will distribute the benefits that the Settlement allows. The Notice explains the lawsuit, the Settlement, your legal rights, what benefits are available, who is eligible for them, and how to get them.

The Court in charge of this case is the Superior Court of the State of California, County of San Diego – Central Division. The case is known as Lozano v. CodeMetro, Inc., Case No. 37-2020- 00022701-CU-MC-CTL (the “Action”). The person who filed the lawsuit is called the Plaintiff, and the company they sued, CodeMetro, Inc., is called the Defendant.

A copy of the Notice can be found here.

The Plaintiff claims that CodeMetro failed to implement and maintain reasonable security measures to protect patients’ confidential PHI/PII in its possession. Plaintiffs also claim that CodeMetro knew or should have known the risks of collecting and storing PHI/PII, as well as the importance of maintaining secure systems, and should have identified the vulnerabilities in order to prevent the Data Incident from occurring.

CodeMetro has and continues to deny all Claims made in the Action, as well as all charges of wrongdoing or liability.

In a class action, one or more people called Representative Plaintiffs sue on behalf of people who have similar claims. Together, all these people are called a Class, Class Members, or Settlement Class Members. One Court and one judge—in this case, California Superior Court Judge John S. Meyer—resolves the issues for all Settlement Class Members, except for those who exclude themselves from the Settlement Class.

The Court did not decide in favor of the Plaintiff or the Defendant. Instead, the Plaintiff negotiated a Settlement with the Defendant that allows them to avoid the risks and costs of lengthy and uncertain litigation and the uncertainty of a trial and appeals. It also allows Settlement Class Members to be compensated without further delay. The Representative Plaintiff, Juan C. Lozano, and attorneys for the Settlement Class Members agree the Settlement is best for all Settlement Class Members.

You are part of the Settlement as a Settlement Class Member if your PHI/PII was maintained on CodeMetro’s database server and was included in the Data Incident.

In June 2020, CodeMetro sent letters to Settlement Class Members informing them that on April 21, 2020, CodeMetro suffered a ransomware attack and that, prior to deploying the ransomware, the criminals were potentially able to gain access to a database server containing Settlement Class Members' PHI/PII.

Yes. Excluded from the Settlement are officers, directors, employees, principals, affiliated entities, controlling entities, agents, or other affiliates of CodeMetro, and the Judge(s) assigned to the Action and members of their immediate families.

If you are still not sure whether you are included, you can contact the Settlement Administrator by calling 1-800-670-6527, by emailing info@CMsettlement.com, or by writing to:

CodeMetro Settlement Administrator
P.O. Box 2359
Portland, OR 97208-2359

You can complete and submit a Claim Form to see if you qualify for a Settlement Benefit.

The Settlement provides all Settlement Class Members with their choice of one of:

1. a Cash payment, or
2. Reimbursement of Expenses, or
3. Reimbursement of Fraudulent or Unauthorized Charges.

The Settlement also makes a Protection Plan available to Settlement Class Members whose Social Security number was part of the Data Incident.

CodeMetro has agreed to pay $850,000 in the aggregate into a Settlement Fund. After deducting the costs of notice and settlement administration, Court-approved attorneys’ fees, costs and expenses, and a Representative Plaintiff service award, the net Settlement Fund will be used to pay Settlement Class Members who submit a valid Claim Form requesting a Cash payment, Reimbursement of Expenses, or Reimbursement of Fraudulent or Unauthorized Charges, as well as to cover the costs of providing the Protection Plan to qualifying Settlement Class Members selecting that option.

The amount a Settlement Class Member receives under the Cash Option depends on the state in which they reside. Each Settlement Class Member who submits a valid Claim Form and selects the Cash Option will receive a cash payment estimated to be in the range of $132 (California residents) or $66 (non-California residents).

The value of Cash Option Claims will be determined as follows:

1. after attorneys’ fees, costs, and expenses, notice and administration costs, the Representative Plaintiff service award, costs associated with the Protection Plan option, and valid Claims for the Reimbursement of Expenses Option and Reimbursement of Fraudulent and Unauthorized Charges Option are deducted from the Settlement Fund,
2. then the remaining amount will be divided among Cash Option claimants such that claimants who reside in California receive an amount that is twice the amount received by claimants residing in other states, and the fund is exhausted.

Settlement Class Members selecting the Cash Option are not eligible to receive a payment under the Reimbursement of Expenses Option or Reimbursement of Fraudulent or Unauthorized Charges Option.

Each Settlement Class Member who submits a valid Claim Form and selects the Reimbursement of Expenses Option will receive up to $250 as reimbursement of certain documented expenses actually incurred as a result of the Data Incident, which were not reimbursed by insurance or another third party.

The following losses and expenses are eligible for reimbursement. Required documentation must be provided with the Claim Form:

• Documented Time—up to $20 per hour for a maximum of 4 hours ($80 total)—associated with visits and calls required to correct issues directly related to the Data Incident.
• Out-of-pocket costs directly related to the Data Incident, such as the costs associated with purchasing police reports, late charges, overdraft fees or other fees, as well as other similar expenses directly related to the Data Incident and expended in good faith (which will be at the Settlement Administrator’s discretion to determine).

Settlement Class Members selecting the Reimbursement of Expenses Option are not eligible to receive a payment under the Cash Option or Reimbursement of Fraudulent or Unauthorized Charges Option.

Each Settlement Class Member who submits a valid Claim Form and selects the Reimbursement of Fraudulent and Unauthorized Charges Option will receive reimbursement of actual unreimbursed losses due to fraudulent activity or unauthorized charges that were likely caused by the Data Incident and not reimbursed by insurance or another third party, not to exceed $3,500 per Settlement Class Member.

To receive a payment under the Reimbursement of Fraudulent and Unauthorized Charges Option, a Settlement Class Member must submit reasonable documentation in support of their Claim Form showing the actual unreimbursed losses claimed were more likely than not caused by the Data Incident.

Settlement Class Members selecting the Reimbursement of Fraudulent or Unauthorized Charges Option are not eligible to receive a payment under the Cash Option or Reimbursement of Expenses Option.

Each Settlement Class Member whose Social Security number was included in data involved in the Data Incident and who submits a valid Claim Form selecting the Protection Plan will receive, free of charge, a two-year subscription to CyberScout Package 3 (but only one additional year if CodeMetro’s prior one-year offer of credit monitoring was previously accepted by the Settlement Class Member) to include:

1. single-bureau credit monitoring;
2. dark web monitoring;
3. Proactive Fraud Assistance;
4. $1,000,000 insurance coverage for reimbursement of losses attributable to the Data Incident, which shall commence upon enrollment; and
5. Identity Theft and Fraud Resolution Services.

The Protection Plan will begin and run from the date the Settlement Class Member activates the Protection Plan, and the activation code will not expire until 12 months after the date the Settlement Class Member receives the activation code.

Qualifying Settlement Class Members selecting the Protection Plan can also request a Cash payment, Reimbursement of Expenses, or Reimbursement of Fraudulent and Unauthorized Charges.

To qualify for a Settlement benefit, you must complete and submit a Claim Form. Claim Forms are available by calling 1-800-670-6527 or by writing to:

CodeMetro Settlement Administrator
P.O. Box 2359
Portland, OR 97208-2359

The Claim Form must be submitted online on or before 11:59 p.m. (Pacific) on November 2, 2021, or by mail and postmarked by November 2, 2021.

The Court granted final approval to the Settlement on September 8, 2021. There may be appeals. It is always uncertain whether any appeals can be resolved favorably and resolving them as well as processing all Claim Forms can take time, perhaps more than a year. It also takes time for all the Claim Forms to be processed. Please be patient.

Unless you exclude yourself from the Settlement, you will automatically release certain legal Claims as they relate to the Settlement. This means that you will no longer be able to sue, continue to sue, or be part of any other lawsuit against CodeMetro about the Claims made in this Action and released by the Settlement Agreement. You will be legally bound by all of the Court’s orders, as well as the “Released Claims,” below. You may exclude yourself from the Settlement (see FAQ 17). If you exclude yourself from the Settlement, you will not be bound by any of the Released Claims.

“Released Claims” means any and all Claims asserted against any of the Released Persons based on the allegations, facts, or circumstances alleged in the Litigation, including without limitation the Data Incident, and also all judgments, liens, indebtedness, losses, Claims, liabilities, actions, demands, rights, suits, and causes of action of whatever kind or nature against the Released Persons, including damages, costs, expenses, penalties, and attorneys’ fees, known or unknown, suspected or unsuspected, in law or equity directly or indirectly arising out of, relating to, or in any way connected with, the Data Incident, which have been asserted or which could have been asserted by Representative Plaintiff or any Settlement Class Member against any of the Released Persons based on, relating to, concerning, or arising out of the Data Incident or the allegations, facts, or circumstances described in the Litigation, whether in federal court, state court or any other forum. Released Claims shall include Unknown Claims, but shall not include the right of any Settlement Class Member or any Released Person to enforce the terms of the Settlement Agreement and Claims not arising from the facts alleged in the Litigation, including, but not limited to, Claims for personal injury.

To exclude yourself from the Settlement, you must send a letter by mail stating that you want to be excluded from the Settlement reached in Lozano v. CodeMetro, Inc., Case No. 37-2020-00022701 (Cal. Super. Ct., Cnty. of San Diego). Your letter must also include your name, address, telephone number, and your signature. You must mail your exclusion request postmarked no later than August 13, 2021, to:

CodeMetro Settlement Administrator
Exclusions
P.O. Box 2359
Portland, OR 97208-2359

No. If you exclude yourself from the Settlement you cannot receive any benefits from the Settlement. If you exclude yourself, do not send in a Claim Form to ask for a Settlement benefit because you will no longer be eligible.

No. If you remain in the Settlement (i.e., do nothing or do not exclude yourself from the Settlement), you give up any right to separately sue the Defendant for the Claims released by the Settlement Agreement.

Yes. The Court appointed Ben Barnow of Barnow and Associates, P.C., and Timothy G. Blood of Blood Hurst & O’Reardon LLP to represent you and other Settlement Class Members. These lawyers are called Co-Lead Settlement Class Counsel. These lawyers and their firms are experienced in handling similar cases. You will not be charged for these lawyers. If you want to be represented by your own lawyer, you may hire one at your own expense.

If the Settlement is approved and becomes final, Co-Lead Settlement Class Counsel will ask the Court to award attorneys’ fees in the amount of $283,333, reimbursement of costs and expenses, and a service award to Representative Plaintiff in the amount of $2,500. If approved, these amounts will be paid from the Settlement Fund.

If you are a Settlement Class Member, you can object to the Settlement if you do not agree with a part or the entirety of the Settlement. You can give reasons why you think the Court should not approve the Settlement. The Court will consider your views before making a decision. To object, you must file with the Court and you must also mail copies to Co-Lead Settlement Class Counsel and Counsel for CodeMetro a written notice stating that you object to the Settlement in Lozano v. CodeMetro, Inc., Case No. 37-2020-00022701.

Your objection must include:

1. Your full name, address, telephone number, and email address;
2. Information identifying you as a Settlement Class Member, including proof that you are a member of the Settlement Class;
3. A written statement of all grounds for the objection, accompanied by any legal support for the objection;
4. The identity of all counsel representing you;
5. The identity of all counsel representing your who may appear at the Final Fairness Hearing;
6. All other cases in which you (directly or through counsel) or your counsel (on behalf of any person or entity) has filed an objection to any proposed class action settlement, has been a named plaintiff in any class action, or has served as lead plaintiff class counsel, including the case name, court, and docket number for each;
7. A certificate of good standing from the highest court of the state in which your counsel is admitted to practice law;
8. Documents sufficient to show the results of any sanctions, investigations, or disciplinary proceedings against your counsel;
9. A list of all persons who will be called to testify at the Final Fairness Hearing in support of the objection;
10. A statement confirming whether you intend to personally appear or testify at the Final Fairness Hearing; and
11. Your signature or the signature of your duly authorized attorney or other duly authorized representative (along with documentation setting forth such representation).

Your objection must be filed with the Clerk of the San Diego Superior Court, 330 West Broadway, San Diego, California, 92101, by August 13, 2021. You must also mail copies of your objection to one of Co-Lead Settlement Class Counsel and Counsel for CodeMetro postmarked no later than August 13, 2021, at the addresses below.

Objecting is telling the Court that you do not like something about the Settlement. Excluding yourself is telling the Court that you do not want to be part of the Class in this Settlement. If you exclude yourself from the Settlement, you have no basis to object or file a claim because the Settlement no longer applies to you.

The Court will hold a hearing to decide whether to approve the Settlement. You may attend and you may ask to speak, but you do not have to. You cannot speak at the hearing if you exclude yourself from the Settlement

The Court granted final approval to the Settlement on September 8, 2021.

The Final Fairness Hearing was held on September 3, 2021. It is no longer possible to attend the hearing

If you do nothing, you will not receive any benefits from this Settlement. If the Court approves the Settlement, you will be bound by the Settlement Agreement and the Release. This means you will not be able to start a lawsuit, continue with a lawsuit, or be part of any other lawsuit against the Defendant or the Released Persons about the issues resolved by this Settlement and released by the Settlement Agreement.

Yes. This Notice summarizes the proposed Settlement. More details are in the Settlement Agreement available here, by emailing info@CMsettlement.com, or writing to:

CodeMetro Settlement Administrator
P.O. Box 2359
Portland, OR 97208-2359

For more information, you may call 1-800-670-6527, email info@CMsettlement.com, or write to:

CodeMetro Settlement Administrator
P.O. Box 2359
Portland, OR 97208-2359

Please do not call the Court or the Clerk of the Court for additional information.

They cannot answer any questions regarding the Settlement or the Action.