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This case involves patient data stored by ETCH that was potentially exfiltrated by hackers in or around March 2022. Current and former patients whose data was compromised will be affected by the settlement. Specifically, members of the Settlement Class and the Minor Subclass, defined below, will be affected.
The Plaintiffs and Defendant will ask the Court to certify a Settlement Class defined as “all persons whose Private Information was compromised in the Data Breach and were sent a notice of the Data Breach from Defendant.”“Private Information” (which includes both personally identifiable information (“PII”) and Protected Health Information (“PHI”)) shall include any combination of names, contact information, date of birth, medical record number, medical history information and Social Security numbers. All members of the Settlement Class that do not opt-out of the Settlement shall be referred to as Settlement Class Members.”
There shall also be a “Minor Subclass” which shall be defined as “all persons below the age of majority at the time of the Data Breach whose Private Information was compromised in the Data Breach and were sent a notice of the Data Breach from Defendant.”The Settlement Class specifically excludes: (i) ETCH and its officers and directors; (ii) all Settlement Class Members who timely and validly request exclusion from the Settlement Class; (iii) the Judge assigned to evaluate the fairness of this Settlement; and (iv) any other Person found by a court of competent jurisdiction to be guilty under criminal law of initiating, causing, aiding or abetting the criminal activity occurrence of the Data Breach or who pleads nolo contendre to any such charge.
If the Settlement does not become effective (for example, because it is not finally approved, or the approval is reversed on appeal), then this litigation will continue.
Data security. In March 2022, cybercriminals were able to access the ETCH environment, encrypt certain servers, and potentially exfiltrate ETCH data files that contained highly sensitive current and former patient personal and health information. This event is referred to as the Data Breach.
The Lawsuit, initiated by Plaintiffs in or around early 2022, contends that Defendant stored its current and former patients’ personal data without proper data security. Because of this, the Lawsuit alleges, the cybercriminals were able to steal highly sensitive private information of tens of thousands of ETCH patients and misuse it. Defendant denies all allegations that its data security practices were improper or insufficient, or that its actions in any way led to the Data Breach. The Court has not determined whether Plaintiffs or Defendant are correct.
Plaintiffs filed the Lawsuit against the Defendant on June 10, 2022, in the Circuit Court for Anderson County in the State of Tennessee.
Plaintiffs’ Counsel conducted a thorough examination and investigation of the facts and law relating to the matters in the Lawsuit, which included extensive informal discovery, requesting and receiving documents from Defendant, examining Defendant’s documents, and questioning Defendant regarding its documents.On December 6, 2022, the Parties participated in an all-day mediation conducted by Daryl Fansler, a mediator well versed in data breach and privacy litigation.
Counsel for both Plaintiffs and Defendant determined that there is significant risk in continuing the litigation. Among the risks of continued litigation for Plaintiffs are the risks of failing to prove liability or restitution and damages on a class-wide or individual basis. In particular, there may be difficulties establishing: (1) Defendant’s cybersecurity measures were inadequate to prevent the Data Breach, (2) that Defendant had a duty to Plaintiffs and the Settlement Class to provide such a high level of data security, (3) the amount of damages or restitution due to the Settlement Class or to any Settlement Class member, and (4) that common questions predominate over individual issues such that a Settlement Class may be certified. After considering the risks and costs of further litigation, the Parties have concluded that it is desirable that Plaintiffs’ claims be settled and dismissed on the terms of the Settlement Agreement.
Plaintiffs and their counsel believe that the terms of the Settlement are fair, reasonable, adequate, and equitable, and that the Settlement is in the best interest of the Settlement Class Members.
All Minor Subclass members will be automatically provided with a code to activate ten (10) years of Pango’s Identity Defense Minor Service. Said codes will be live after the Effective Date of the Settlement Agreement, and Minor Subclass members will have a one-year enrollment period in which to enroll in this coverage. This will be the only settlement benefit offered to Minor Subclass members.
All other Class Members are eligible to receive a Alternative Cash Payment and free credit monitoring services. To receive these benefits from the Settlement, you must complete and return the Claim Form you received in the mail (which Claim Form is also available in the documents sections on this Settlement Website.)There are a few kinds of settlement benefits available. You may receive:
Alternative Cash Payment. All Settlement Class Members may, in lieu of the benefits outlined above, claim an Alternative Cash Payment of $50 to be prorated according to the number of claims made by other Settlement Class Members. Any Settlement Class Member who elects to receive the Alternative Cash Payment will not be eligible to receive reimbursement for Out-of-Pocket Losses, Lost Time, Extraordinary Losses, or identity theft protection. Minor Subclass members are not eligible for this Alternative Cash Payment.Cash payments amounts may be reduced pro rata (equally among Settlement Class Members) or increased pro rata depending on how many Settlement Class Members submit claims. Complete information about the Settlement and its benefits are available at this Settlement Website.
Cash payments will be paid by check sent via first-class mail to the mailing address you provide on the Claim Form or by direct deposit into your bank account, or another form of electronic transfer (such as PayPal, Venmo, and Zelle). Instructions are provided on the Claim Form enclosed in this mailing and available at this Settlement Website.As described on the Claim Form, to participate in the Settlement, you can submit a claim for Lost Time, for Out-of-Pocket Losses and/or Extraordinary Losses, or both. Those who submit a claim for Out-of-Pocket and/or Extraordinary Losses are required to submit, in addition to the Claim Form, documentation demonstrating the losses they have suffered. Those who submit a claim for Lost Time are not required to provide documentation but must still fill out and submit a valid, signed Claim Form, and must attest under penalty of perjury, that the information contained therein is accurate. You may also choose to forego these types of payment and the free credit monitoring services by simply submitting a claim for an Alternative Cash Payment, as also described on the Claim Form.
Checks for approved claims shall be mailed and postmarked within thirty (30) days after the Court has granted final approval of the Settlement and the judgment has become Final, or within thirty (30) days of the date that the claim is approved, whichever is later.
To make a claim for a cash payment or free credit monitoring services, you must fill out and submit the Claim Form. Claim Forms will be sent to you and are also available on this Settlement Website. You can submit the Claim Form online, or you can mail it to the Claims Administrator at:
Blank v East Tennessee Children's Hospital
c/o Kroll Settlement Administration
P.O. Box 225391
New York, NY 10150-5391
Claim Forms must be submitted online or delivered to, and received by, the Claims Administrator by 11:59 p.m. Eastern Time on February 17, 2024.
The Court will decide whether to approve the Settlement at a Final Approval Hearing. That hearing is currently scheduled for December 12, 2023 at 9:00 am Eastern Time.
If the Court approves the Settlement and there are no appeals, then payments shall be mailed and postmarked within thirty (30) days after the Court has granted final approval of the Settlement and the judgment has become Final.
To date, Proposed Class Counsel has not been compensated for any of their work on this case. As part of the Settlement, Proposed Class Counsel may apply to the Court for an award of up to one-third of the Settlement Fund, which is $511,500.00 to pay their attorneys’ fees and expenses.
In addition, the named Plaintiffs in this case may apply to the Court for a service award up to $1,000 each. This payment is designed to compensate Plaintiffs for the time, effort, and risks they undertook in pursuing this litigation.The Court will ultimately determine and approve the amount of attorneys’ fees and expenses, as well as the amount of the service award, to be awarded to Plaintiffs and Plaintiffs’ Counsel.
If you are a Settlement Class Member or Minor Subclass member and you do not optout of the Settlement, you will be legally bound by all orders and judgments of the Court, and you will also be legally bound to the Releases of the claims in the Settlement. This means that in exchange for being a Settlement Class Member or Minor Subclass member and being eligible for the benefits of the Settlement, you will not be able to sue, continue to sue, or be part of any other lawsuit against ETCH and/or any of the Released Parties that involves the same legal allegations as those resolved through this Settlement.
You will not be responsible for directly paying any out-of-pocket costs or attorneys’ fees concerning this case if you stay in the Settlement Class. Rather, attorneys’ fees and costs, if approved by the Court, will be paid by Defendant. Staying in the Settlement Class means that you give up the following legal claims, as set forth in the Settlement Agreement:
You can opt-out of the Settlement Class if you wish to retain the right to sue Defendant separately for the Released Claims. If you opt-out, you cannot file a claim or objection to the Settlement.
To opt-out, you must individually sign and timely submit written notice of such intent to the designated Post Office box established by the Claims Administrator. The written notice must clearly manifest your intent to be excluded from the Settlement Class. To be effective, written notice must be postmarked no later than sixty (60) days after the date on which the Court enters a Preliminary Approval Order.
You can ask the Court to deny approval of the Settlement by timely filing an objection with the Court. You can’t ask the Court to change the terms of the Settlement or order a larger settlement benefit; the Court can only approve or disallow the Settlement as it is written. If the Court does not approve the Settlement, then cash payments will not be paid and the Lawsuit will continue.
You can also ask the Court to deny Proposed Class Counsel’s request for attorneys’ fees and expenses and the service awards. If the Court does not approve those payments, then Plaintiffs and/or Plaintiffs Counsel will not get paid.
You may appear at the Final Approval Hearing, either in person or through your own attorney. If you appear through your own attorney, you are responsible for paying that attorney. If you want to raise an objection to the Settlement at the Final Approval Hearing, you must first submit that objection in writing to the Clerk of the Court as set forth below. Your objection must be postmarked and received on or before the Objection Date.
To be timely, written notice of your objection in the appropriate form must be filed with the Clerk of the Court no later than sixty (60) days after the date on which the Court enters a Preliminary Approval Order, and served concurrently therewith upon Proposed Settlement Class Counsel, J. Gerard Stranch, IV, Stranch Jennings & Garvey, PLLC, 223 Rosa L. Parks Avenue, Ste. 200, Nashville, TN 37203; and counsel for ETCH, Claudia McCarron and Amanda Harvey, Mullen Coughlin LLC, 426 W. Lancaster Avenue, Suite 200, Devon, PA 19333. Your objection must include (i) the objector’s full name, address, telephone number, and e-mail address (if any); (ii) information identifying the objector as a Settlement Class Member, including proof that the objector is a member of the Settlement Class (e.g., copy of notice, copy of original notice of the Data Breach); (iii) a written statement of all grounds for the objection, accompanied by any legal support for the objection the objector believes applicable; (iv) the identity of all counsel representing the objector; (v) a statement whether the objector and/or his or her counsel will appear at the Final Fairness Hearing, and; (vi) the objector’s signature and the signature of the objector’s duly authorized attorney or other duly authorized representative (along with documentation setting forth such representation.
You can file a claim even if you object to the Settlement. If you want to receive benefits in the event that the Court approves the Settlement, then you must submit a Claim Form according to the instructions described above.
You can inspect many of the court documents connected with this case on this Settlement Website.
You can contact the Claims Administrator by calling toll-free 1-833-747-6027 or writing to the following:
PLEASE DO NOT CONTACT THE ATTORNEYS FOR EAST TENNESSEE CHILDREN’S HOSPITAL.