Delkener v. Cottage Health System, et al.
Cottage Health Settlement Administrator
Case No. 30-2016-00847934-CU-NP-CXC

Frequently Asked Questions

 

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  • The lawsuit, entitled Kari Delkener, individually and on behalf of all others similarly situated v. Cottage Health System, Santa Barbara Cottage Hospital, Goleta Valley Cottage Hospital, Santa Ynez Valley Hospital, InSync Computer Solutions, Inc., CIO Solutions, Inc. and CIO Solutions, LP and Does 1-100, Inclusive, Case No. 30-2016-00847934-CU-NP-CXC, was filed on April 21, 2016, and is presently pending in the Superior Court of the State of California, County of Orange.   

    Individuals have received the notice because they may be a member of the Settlement Class.  The Settlement Class is defined as follows: 

    All patients of a Cottage Health hospital (Santa Barbara Cottage Hospital, Santa Ynez Valley Cottage Hospital, or Goleta Valley Cottage Hospital) whose confidential information and/or records were placed on the SQL Server maintained by Cottage Health and were accessible between October 26, 2015 and November 8, 2015 without login credentials, passwords or encryption.

    Notice was sent to individuals that were preliminarily identified as a member of the Settlement Class, based upon records maintained by the Cottage Defendants. 
     
    The Court has preliminarily determined that the proposed Settlement is fair, reasonable, and adequate to the Settlement Class Members, and falls within the range of possible final approval.  The Court has ordered the parties to mail the notice to the Settlement Class Members, to inform them about the lawsuit, the proposed Settlement, the Court’s fairness hearing to consider final settlement approval, and their legal rights and options.

  • The Class Representative contends that Cottage Health (formerly known as and erroneously sued as Cottage Health System), Santa Barbara Cottage Hospital, Goleta Valley Cottage Hospital, Santa Ynez Valley Cottage Hospital (erroneously sued as Santa Ynez Valley Hospital), InSync Computer Solutions, Inc., CIO Solutions, Inc. and CIO Solutions, LP violated the Confidentiality of Medical Information Act, California Civil Code §§56, et seq. (“CMIA”), by placing the Settlement Class Members’ confidential medical information on a computer server that was accessible without log-in credentials, passwords, or encryption, at times between October 26, 2015 and November 8, 2015 without login credentials, passwords or encryption and allegedly releasing that confidential medical information.   
     
    Based on these allegations, the Class Representative asserts that the Settlement Class Members are entitled to statutory damages for the release and disclosure of their confidential medical information pursuant to California Civil Code §56.36(b)(1), general and/or specific damages, and reasonable attorneys’ fees and litigation expenses.  
     
    Defendants deny all allegations of wrongdoing and of liability, and deny that Plaintiff and the Settlement Class are entitled to any recovery, including statutory damages.  There has been no finding of any violation or wrongdoing by Defendants by any court.  The Court has not yet determined whether this action may proceed, either as a class action or on an individual basis.

  • In a class action, a “Class Representative” (in this case, Kari Delkener) sues on behalf of people who have similar claims.  All of these people are a “class” or “class members.”  One court resolves the issues for all class members, except for those who exclude themselves from the class.  A “settlement class” is a class proposed for purposes of a settlement only.  The Court has not determined whether the case may be brought on a class basis.

  • The Court did not decide this lawsuit in favor of the Plaintiff or Defendants.  Instead, both sides agreed to the Settlement.  That way, they avoid the cost and risk of further litigation, and the people claimed to have been affected will get prompt and certain compensation.

    The Class Representative and her attorneys believe that a class-wide settlement is in the best interests of the Settlement Class. The Court has preliminarily determined that the proposed Settlement is fair, reasonable, and adequate to the Settlement Class Members, and falls within the range of possible final approval.

  • Anyone who has received the Class Notice may fall within the Settlement Class definition, as preliminarily approved by the Court, which is: 

    All patients of a Cottage Health hospital (Santa Barbara Cottage Hospital, Santa Ynez Valley Cottage Hospital, or Goleta Valley Cottage Hospital) whose confidential information and/or records were placed on the SQL Server maintained by Cottage Health and were accessible between October 26, 2015 and November 8, 2015 without login credentials, passwords, or encryption. 

    Notice was sent to individuals that were preliminarily identified as a member of the Settlement Class, based upon records maintained by the Cottage Defendants. 

  • Yes.  The Settlement Class does not include persons who opt out or exclude themselves from the Settlement in a timely and correct manner by submitting a written request for exclusion.  FAQs 12-14 below describe how to opt out of the Settlement Class and Settlement.

  • If you are not sure whether you are included in the Settlement Class, contact the Settlement Administrator (JND Legal Administration) at (888) 551-9753, toll-free, or email info@CottageHealthSettlement.com.  There is no charge to you for contacting the Settlement Administrator.

  • Defendants will establish a settlement fund totaling $2,050,000.00. The settlement fund will provide payment for the following: (a) payments to the Settlement Class Members who have not opted out of the Settlement, (b) the expense of administration of the Settlement incurred by the Settlement Administrator, (c) any incentive awarded to the Class Representative, and (d) any attorneys’ fees and litigation expenses awarded to Class Counsel.  After payment of settlement administration expenses, the Class Representative’s incentive, and Class Counsels’ attorneys’ fees and expenses, the entire remainder of the settlement fund will be distributed to the Settlement Class Members who did not opt out, in equal shares.  Any payments which are not negotiated by the Settlement Class Members, after reasonable and diligent efforts by the settling parties and Settlement Administrator, shall be treated as unpaid cash residue and unclaimed funds under California Code of Civil Procedure section 384(b)(3).  Such moneys shall be paid by the Settlement Administrator as follows: (1) twenty-five percent (25%) to the State Treasury for deposit in the Trial Court Improvement and Modernization Fund in accordance with Code of Civil Procedure section 384(b)(3)(A); (2) twenty-five percent (25%) to the State Treasury for deposit into the Equal Access Fund of the Judicial Branch in accordance with Code of Civil Procedure section 384(b)(3)(B); and (3) fifty percent (50%) to the Cy Pres Recipient in accordance with Code of Civil Procedure section 384(b)(3)(C).  These payments shall be made on the date fourteen (14) days after expiration of the 180-day period for negotiation of the settlement checks.

    The parties will request Court approval for the payment of expenses actually incurred by the Settlement Administrator from the settlement fund, up to a maximum of $55,000.  An incentive award on behalf of the Class Representative will be requested in an amount not to exceed $5,000 for her efforts on behalf of the Settlement Class.  Class Counsel will request an award of attorneys’ fees not to exceed $615,000 and litigation expenses not to exceed $26,000.  Any such amounts to be paid from the settlement fund must first be approved by the Court as being fair and reasonable to the Settlement Class, and will not exceed these maximum amounts.

    The following example is provided for demonstration purposes, based upon the maximum permissible requested amounts for settlement administration expenses, the Class Representative incentive, and Class Counsels’ attorneys’ fees and litigation expenses.  It must be emphasized, however, that the Court will make the final determination of such amounts:

    The proposed settlement fund is $2,050,000.  There are an estimated 11,608 Settlement Class members.  If the Court approves the maximum permissible request for settlement administration expenses ($55,000), the Class Representative incentive ($5,000), and Class Counsels’ attorneys’ fees ($615,000) and litigation expenses ($26,000), the net settlement fund amount would be $1,349,000.  If no one opts out of the Settlement Class, each of the approximately 11,608 Settlement Class Members would receive a personal check of $116.21.

    These figures could change depending on the Court’s approval of each portion of the Settlement and the number of Settlement Class Members who opt out of the Settlement.

    Complete terms of the Settlement are set forth in the Settlement Agreement.  A copy of the Settlement Agreement can be downloaded from the Important Documents webpage.

  • If the Settlement becomes final, each Settlement Class Member who did not opt out will be releasing Defendants and all related persons and entities (the “Released Parties”) from any potential claims of any kind, past, pending, or future, in this lawsuit and any other proceeding, related to the alleged release and disclosure of medical health records, medical information, and/or personally identifiable information from a computer server maintained by the Cottage Defendants and referred to by the Cottage Defendants as the SQL Server, and accessible between October 26, 2015 and November 8, 2015 without login credentials, passwords or encryption. 
     
    The precise terms of the Settlement’s “release,” which defines the claims given up by the Settlement Class in exchange for payment of settlement benefits, are set forth in the Settlement Agreement.  A copy of the Settlement Agreement can be downloaded from the Important Documents webpage.
     
    Unless a Class Member excluded themselves, all of the Court’s orders will apply to them and will be legally binding on them, including the Court’s decision whether to finally approve this settlement and the judgment entered in the lawsuit.

  • Class Members do not need to do anything to participate in the Settlement and receive their settlement payment.  If they did not opt out, and the Court grants final approval of the Settlement and that approval becomes final, they will automatically receive their settlement payment by U.S. Mail. 
     
    Please contact the Settlement Administrator if the Notice was not mailed to your current address or if you currently have any plans to move, to ensure that your current address is used.

  • Settlement payment checks will be mailed to the Settlement Class Members only after the Court grants “final approval” of the Settlement, and, in some cases, after the time for any appeal has ended and any appeal has been resolved.  The earliest possible date that settlement payment checks can be mailed is April 20, 2018, thirty-five days after the date presently set for the fairness hearing.

  • No.  If a Class Member opted out of the Settlement, they will not receive any settlement payment, and they cannot object to the Settlement or appear at the fairness hearing.  By opting out of the Settlement, the Class Member will not release any claims which otherwise would be released by the Settlement and they will not be bound by any judgment or orders of the Court in approving the Settlement.  The Class Member will retain whatever rights or claims they may have, if any, against Defendants, and they will be free to continue or pursue their own lawsuit against Defendants, if they choose to do so.

  • No.  Unless a Class Member timely and validly excluded themselves from the Settlement by the deadline of February 12, 2018, they will give up the right to sue Defendants for the claims that the Settlement releases and resolves. 
     
    The lawsuit seeks statutory damages under California Civil Code §56.36(b)(1), general and/or specific damages, and reasonable attorneys’ fees and litigation expenses.  If a Class Member wishes to pursue any other claims released by the Settlement, they must have timely and validly requested exclusion from the Settlement.

  • To have excluded themselves from the Settlement, a Class Member must have sent a letter by mail, postmarked by the deadline below, stating that they want to be excluded from Delkener v. Cottage Health System, et al., Case No. 30-2016-00847934-CU-NP-CXC, Superior Court of the State of California, County of Orange.  The letter must: 1) have been signed by the Class Member; 2) included their full name, address, and telephone number; and 3) included the following statement: “I request to be excluded from the Settlement in the Delkener v. Cottage Health System action.”

    Class Members must have mailed their exclusion request to the Settlement Administrator, postmarked no later than February 12, 2018, addressed to:

    Cottage Health Settlement Administrator
    JND Legal Administration
    P.O. Box 6878
    Broomfield, CO 80021

    Class Members could not have excluded themselves from the Settlement by telephone, electronic mail, or any other method except by mail, in the manner described in the Class Notice.

    Requests for exclusion that do not include all required information and/or that are not timely submitted will be deemed null, void, and ineffective.  If a Class Member submitted a timely yet insufficient request for exclusion, the Settlement Administrator will contact them. 

    Settlement Class Members who fail to submit a valid and timely request for exclusion shall be bound by all terms of the Settlement and any final judgment and orders of the Court entered in this lawsuit if the Settlement is approved, regardless of whether they ineffectively or untimely requested exclusion from the Settlement.

  • Yes.  The Court has designated the law firms of Kabateck Brown Kellner LLP, and Ernst Law Group to represent the Settlement Class as “Class Counsel.”  Except any attorneys’ fees and litigation expenses which may be approved and awarded by the Court, to be paid exclusively from the settlement fund, Class Members will not be charged for these lawyers.  These lawyers will not seek to recover any fees or expenses except from the settlement fund, as described in the Class Notice.   If a Class Member wants to be represented by another lawyer with respect to this lawsuit or settlement, they may hire one at their own expense.

  • Class Counsel will make an application to the Court for an award of attorneys’ fees and litigation expenses in a combined amount not to exceed $615,000 for their efforts and up to $26,000 in expenses incurred in litigating this action and obtaining the Settlement. Class Counsel have agreed to divide the fees awarded by the Court based upon the rough apportionment of the work they did in this case, as follows:  Kabateck Brown Kellner LLP – 50%; Ernst Law Group – 50%. 

    Class Counsel will also make an application to the Court for an incentive award for the Class Representative, in an amount not to exceed $5,000, for her personal efforts and contributions on behalf of the class in litigating this action and obtaining the Settlement. 

    Class Counsel will also make an application to the Court for approval of the costs of settlement administration to be paid to JND Legal Administration for its work administering the Settlement, up to a maximum amount of $55,000.

    The actual amount of any such fees, expenses, and incentive, whether in the full amounts requested or in some lesser amounts, will be determined by the Court.  The amounts must be approved by the Court as being fair and reasonable to the Settlement Class, and cannot exceed the foregoing maximum amounts.  Class Counsels’ fees and expenses, the Class Representative’s incentive, and the costs of settlement administration, all as may be approved and awarded by the Court, shall be paid out of the settlement fund.

  • If a Settlement Class Member did not opt out of the Settlement, they could have objected to the Settlement if they didn’t agree with any part of it and didn’t think the Settlement should be approved.  They must have given reasons why they think the Court should not approve it.   

    To object, a Class Member must have submitted a written letter to the Settlement Administrator by mail, postmarked by the deadline below, stating that they object to the Settlement in Delkener v. Cottage Health System, et al., Case No. 30-2016-00847934-CU-NP-CXC, Superior Court of the State of California, County of Orange, and stated the reasons why they think the Court should not approve the Settlement.  Class Members must have also included: (a) their name, address, telephone number, and signature; (b) a detailed statement of their specific objections; and (c) a detailed statement of the grounds for such objections.

    If they wish the Court to consider any records in support of their objection, they must have enclosed copies of such records with the written objection, or if the subject records are not in their possession, custody, or control they must have identified those records and the person(s) whom they believe has possession of them.

    Class Members must have mailed their objection, and any supporting records, to the Settlement Administrator, postmarked no later than February 12, 2018, addressed to:

    Cottage Health Settlement Administrator
    JND Legal Administration
    P.O. Box 6878
    Broomfield, CO 80021

    Class Members could not have objected to the Settlement by telephone, electronic mail, or any other method except by mail, in the manner described in the Class Notice

    An objector is not required to retain an attorney in order to object to the Settlement, but may do so if desired, at the objector’s own expense.  If the objector submitting the objection is represented by an attorney concerning the objection, the objection must comply with the additional requirements set forth in the Court’s Order Granting Preliminary Approval of Proposed Class Action Settlement, a copy of which is available on the Important Documents webpage.

    If a Class Member did not properly submit a timely written objection, their objection will be deemed waived, they will not be permitted to assert their objection at the fairness hearing, and it will not be considered by the Court.  If they did not submit or identify all supporting records with their written objection, they will not be able to present such supporting records at the fairness hearing.

  • Objecting is simply telling the Court that a Class Member doesn’t agree with something about the Settlement.  Class Members can object only if they stay in the Settlement Class. If their objection is overruled, and that ruling becomes final, they will still remain a Settlement Class Member, subject to the orders and judgment of the Court, and they will still participate in the Settlement if it is approved by the Court.   Excluding themselves is telling the Court that they don’t want to be part of the Settlement Class.  If they exclude themselves, they have no basis to object because the case no longer affects them.

  • The Court will hold a fairness hearing at 1:30 pm (PST) on March 16, 2018, in Department CX101 of the Orange County Superior Court, Civil Complex Center, located at 751 West Santa Ana Boulevard, Santa Ana, California 92701.  The fairness hearing may be moved by the Court to a different date or time without additional notice. At the fairness hearing, the Court will consider whether the Settlement is fair, reasonable and adequate, and in the best interests of the Settlement Class.  If there are objections, the Court will consider them.  The judge will only listen to people who have properly submitted a timely objection and timely and properly requested to speak at the fairness hearing (see FAQ 21, below).  After the hearing, the Court will decide whether to approve the Settlement.  We do not know how long it will take after the fairness hearing for the Court to issue a ruling.

  • No.  Class Counsel and counsel for Defendants will answer any questions the judge may have.  If a Class Member submitted an objection, they do not have to come to the fairness hearing to talk about it.  As long as they mailed their written objection on time and in the proper manner, it will be considered by the Court.  Although no Settlement Class Member is required to attend the fairness hearing, it is open to the public and anyone who wishes is free to attend at his or her own expense.

  • Any Settlement Class Member who does not request exclusion and who timely and properly submits an objection to the Settlement may ask the Court for permission to speak at the fairness hearing in support of the objection.  The Court will consider the merits of all timely submitted objections, whether or not the objector appears.

  • If a Settlement Class Member does nothing, and the Settlement is approved and that order becomes final, they will be legally bound by the Settlement.  They will receive the settlement payment due and they will not be able to start a lawsuit, continue with a lawsuit, or be part of any other lawsuit against Defendant about the claims in this case.

  • The Class Notice is a summary of the Settlement.  For more information about this case, and to review key documents pertaining to the proposed Settlement, you may visit the Important Documents page, contact the Settlement Administrator, or contact the Class Counsel attorneys, all at no charge to you.

    To Contact the Settlement Administrator: To Contact the Attorneys for the Class:

    Cottage Health Settlement Administrator
    c/o JND Legal Administration
    P.O. Box 6878
    Broomfield, CO 80021
     
    Toll-Free: (888) 551-9753
    Email: info@CottageHealthSettlement.com

    Taylor Ernst
    Ernst Law Group
    1020 Palm Street
    San Luis Obispo, CA 93401

    Telephone: (805) 541-0300
     

    In addition, Settlement Class Members may review the Court’s file in this action in person or on the internet.  The internet address is http://www.occourts.org/online-services/case-access/ and the case number for this matter is 30-2016-00847934-CU-NP-CXC. The address of the Courthouse is Orange County Superior Court, Civil Complex Center, 751 West Santa Ana Boulevard, Santa Ana, CA 92701.

    PLEASE DO NOT CONTACT DEFENDANTS OR THE COURT WITH ANY QUESTIONS.

     

For More Information

Visit this website often to get the most up-to-date information.

Cottage Health Settlement Administrator 
c/o JND Legal Administration  
P.O. Box 6878 
Broomfield, CO  80021