Berton v. Aetna Inc. et al

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United States District Court
Northern District of California
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
MARA BERTON,
Plaintiff,
v.
AETNA INC., et al.,
Defendants.
Case No. 23-cv-01849-HSG
ORDER GRANTING PRELIMINARY
APPROVAL
Re: Dkt. No. 132
Pending before the Court is Plaintiff’s unopposed motion for preliminary approval of class
action settlement. See Dkt. No. 132 (“Mot.”). The Court held a hearing on the motion on
November 6, 2025. Dkt. No. 135. For the reasons detailed below, the Court GRANTS the
motion.
I. BACKGROUND
A. Factual Allegations
This is a putative class action lawsuit in which Plaintiff Mara Berton alleges that
Defendants Aetna Inc. and Aetna Life Insurance Company (collectively, “Aetna” or
“Defendants”) designed, sold, and administered health benefit plans that discriminated on the basis
of sex, including sexual orientation and/or gender identity, by denying equal access to fertility
treatments. See Dkt. No. 1 (“Compl.”) ¶¶ 1, 18, 21. Plaintiff alleges that Aetna imposed more
burdensome requirements on plan members in LGBTQ+ relationships seeking to become pregnant
than on cisgender members in heterosexual relationships pursuant to the definition of infertility set
forth in Aetna’s Clinical Policy Bulletin No. 327 (the “Definition of Infertility”). See id. ¶¶ 3–4,
25–46. Specifically, Plaintiff alleges that heterosexual couples could demonstrate infertility while
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simply representing that they have had several months of frequent unprotected intercourse, while
LGBTQ+ couples needed to show proof of costly insemination attempts. Id. ¶¶ 33, 39, 46.
Plaintiff filed her complaint on April 17, 2023, alleging a single cause of action for
discrimination in violation of Section 1557 of the Affordable Care Act, 42 U.S.C. § 18116(a), on
behalf of a “California Damages Class” and a “National Injunctive Relief Class.” See id. ¶¶ 95–
102. Defendants filed a motion to dismiss, which the Court denied. Dkt. No. 40 (motion); Dkt.
No. 70 (order).
B. Settlement Agreement
On October 30, 2024, February 18, 2025, and March 4, 2025, the parties participated in
three full-day mediations with Judge Steven M. Gold (Ret.). See Dkt. No. 132-4 (“Peterson-Fisher
Decl.”) ¶ 33. The parties ultimately entered into a settlement agreement. See Dkt. No. 132-5
(“Settlement Agreement,” or “SA”). The key terms are as follows:
Damages Class Definition: The Damages Settlement Class is defined as:
All California Commercial Plan members: (1) who were covered
during the California Damages Class Period and at the time of service
by a plan that offered coverage for infertility treatments; (2) for whom
there is not a reason, other than the Definition of Infertility, why the
individual did not qualify for coverage for infertility treatments
obtained under the individual’s healthcare plan; (3) who meet the
criteria for Categories A, B, C, or D as set forth below; and (4) who,
if members of Categories B, C, or D, file any Attestation and/or Claim
Form Submission required by the Settlement Agreement to
participate in the Settlement.
Category A: Category A class members consist of California
residents whose Aetna member files contain a denial of a
precertification or claim request for one of an agreed-upon set of
IUI/ICI codes and whose member files contain information to suggest
they were a person with a uterus in an Eligible LGBTQ+ Relationship
at the time they sought coverage for IUI/ICI. Category A members
will receive notice of the settlement and will be automatically entitled
for all payments unless they opt out.
Category B: Potential Category B California Damages Class
Members consist of California residents whose Aetna member files
contain a denial of a precertification or claim request for one of an
agreed-upon set of IUI/ICI codes and whose Aetna member files do
not indicate they were in a heterosexual relationship at the time they
sought coverage. These individuals will receive notice and an
opportunity to submit an Attestation certifying they were individuals
with uteruses in an Eligible LGBTQ+ Relationship at the time they
sought IUI/ICI coverage. The people who submit an Attestation and
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meet the other eligibility criteria in this Agreement will be Category
B California Damages Class Members entitled to receive settlement
payments.
Category C: Potential Category C Class Members who will receive
direct notice are Aetna members who were either denied or approved
for an agreed-upon set of IVF codes during the Class Period. In
addition to direct notice to Potential Category C Class Members, the
Parties will issue publication notice via an agreed-upon set of
publications and/or social media sites. The people who respond with
(1) an Attestation certifying they were individuals with uteruses in an
Eligible LGBTQ+ Relationship at the time of seeking services during
the Class Period, and (2) a Claim Form setting forth evidence
satisfactory to the Parties of out-of-pocket costs incurred for IUI/ICI
during the Class Period, will be Category C California Damages Class
Members entitled to receive settlement payments.
Category D: Potential Category D Class Members consist of
California residents whose Aetna member files contain a denial of a
precertification or claim request for one of an agreed-upon set of
IUI/ICI codes and whose Aetna member files establish that the
individual had a denial that was followed by an approval within 90
days, or was otherwise paid by Aetna. There are two subcategories
of potential California Damages Class Members within D:
i. Category D-A is made up of individuals with uteruses whose
Aetna member files contain information to suggest they were in
an Eligible LGBTQ+ Relationship at the time they sought
coverage;
ii. Category D-B is made up of individuals with uteruses whose
Aetna member files do not indicate they were in a heterosexual
relationship at the time they sought coverage.
Potential members of Category D will receive notice and an
opportunity to submit a Claim Form setting forth satisfactory
evidence of out-of-pocket costs incurred for IUI/ICI during the Class
Period, and for potential members of D-B an Attestation confirming
they were individuals with uteruses in an Eligible LGBTQ+
Relationship at the time of seeking services during the Class Period.
Individuals who demonstrate eligibility are Category D California
Damages Class Members entitled to settlement payments.
SA ¶¶ 13, 70.
Injunctive Relief Class Definition: The Injunctive Relief Settlement Class is defined as:
“Individuals with uteruses in an Eligible LGBTQ+ Relationship who
are currently or will be covered during the Class Period for the
National Injunctive Relief Class by a commercial health plan
provided or administered by Aetna Life Insurance Company in the
United States that includes fertility benefits and (1) who meet the
clinical criteria for fertility services under the currently operative or
any subsequent version of CPB No. 327 other than the criteria
challenged in this Civil Action and (2) who currently or will in the
future want to obtain coverage for intrauterine (“IUI”) or intracervical
insemination (“ICI”), or request a form of IVF consistent with
Advanced Reproductive Technology (“ART”) coverage pursuant to
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Aetna’s clinical policy requiring trials of less invasive therapeutic
approaches as defined in CPB No. 327.”
SA ¶ 37.
Settlement Benefits: The Settlement Agreement provides for three different components
of monetary compensation to the Damages Class. First, all Damages Class members will receive a
Default or Pro Rata Payment, depending on the final class size. SA ¶ 72. If there are 175 or fewer
Damages Class members, each class member will receive a Default Payment of $10,000. Id.
¶¶ 24, 72. If more than 175 eligible class members participate in the settlement, Defendants will
establish a non-reversionary common fund of $1,750,000 to be distributed pro rata to all class
members. Id. ¶¶ 48, 72.
Second, each Damages Class member who has not already been reimbursed for eligible
procedures by Aetna or a secondary coverage provider will receive a Dollars for Benefits
Payment. Id. ¶ 71. The Default Dollars for Benefits Payments are $1,408 for each class member,
id. ¶ 71(i), and the settlement also provides a process for class members to receive higher Dollars
for Benefits Payments if their coverage would have allowed greater reimbursement but for Aetna’s
Definition of Infertility, id. ¶ 71(ii).
Third, Aetna will make a $250,000 non-reversionary payment into a Special Harms
Common Fund. Id. ¶¶ 56, 73, 110. Special Harms Payments will be available to compensate class
members who experienced greater harm as a result of Aetna’s allegedly unlawful Definition of
Infertility than would be compensated by the Dollars for Benefits Payment and Default or Pro
Rata Payment, as determined by a Special Master according to the Settlement’s Allocation Plan.
Id. ¶¶ 57, 73. If there is money remaining in the Special Harms Common Fund after payments are
allocated by the Special Master, those funds will be redistributed to all California Damages Class
Members on a pro rata basis. Id. ¶ 74.
To receive settlement benefits, class members in Categories B, C, and D must fill out and
submit a claim form, online or in hard copy, providing an attestation that they were an individual
with a uterus in an Eligible LGBTQ+ Relationship at the time they received an infertility service
for which they sought, or could have sought, coverage from Aetna during the Damages Class
Period. Id. ¶¶ 12, 16. Class members in Categories C and D will also be required to provide
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evidence of out-of-pocket costs incurred for IUI/ICI during the Class Period. Id. ¶¶ 70(c), (d). All
class members, including those in Category A, may request higher Dollars for Benefits Payments
or Special Harm Payments and submit supporting documentation in the same claim form. Id. ¶ 16.
The Settlement Administrator will conduct an initial review of all claims to identify any
missing information or other deficiencies. Id. ¶ 75(a). Defendants will then review claims from
potential Category B, C, and D class members to determine whether Defendants believe they have
submitted adequate evidence that they are class members. Id. ¶ 75(b). Additionally, Defendants
will review claims to determine the amount to which they believe the class member is entitled. Id.
¶ 75(c). The Settlement also provides for a Special Master, Hon. Steven M. Gold (Ret.), to
determine if potential class members have submitted adequate evidence of membership, to
evaluate all Special Harm Submissions, and to allocate amounts from the Special Harms Common
Fund to the Damages Class Members. Id. ¶¶ 59, 96. Aetna will pay the costs of the Settlement
Administrator and the Special Master separate and apart from the payments used to fund the
Settlement Fund. Id. ¶¶ 95, 97.
The Settlement Agreement also provides national injunctive relief. It requires Defendants
to implement a new policy nationwide making IUI and ICI diagnostic and standard medical
benefits under its fully insured commercial plans and to propose such changes to its self-funded
commercial plans upon renewal or initiation. Id. ¶¶ 61, 64.1 Defendants will request
indemnification from any plan sponsor that does not conform to the new policy. Id. ¶ 64.
Defendants will also revise Clinical Policy Bulletin No. 327 (“CPB 327”) to ensure that Aetna’s
medical directors can consider the limited availability of plan members’ chosen sperm for
purposes of qualifying for IVF coverage, alongside other relevant clinical criteria. Id. ¶ 63.
Finally, Defendants will further revise CPB 327 to ensure that individuals who have previously
met the criteria set forth in CPB 327 for Advanced Reproductive Technology (“ART,” which
includes IVF) coverage will not be required to undergo additional cycles of artificial insemination
1 Defendants have agreed to implement this policy in Goidel v. Aetna Life Insurance Co.,
S.D.N.Y. Case No. 1:21-cv-07619 (VSB), but the Goidel settlement will only be enforceable for a
New York class. Dkt. No. 132-11 (“Tanner Decl.”) ¶¶ 50, 52.
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before qualifying for ART coverage for subsequent pregnancy attempts. Id. These changes will
be made to all fully insured Aetna plans. Peterson-Fisher Decl. ¶ 50.
Release: Class members will release Defendants from:
“[A]ll claims or causes of action that were or could have been raised
by the Class Representative and/or the Class or any California
Damages Class Member based on the factual allegations in the
Complaint, including but not limited to alleging that Aetna or any of
the Released Parties is liable under 42 U.S.C. § 18116(a) or any state
law for discrimination on the basis of sex, sexual orientation, and
gender identity during the California Damages Class Period.”
SA ¶ 127.
This release covers “Aetna and all of its predecessors, successors, assigns, past, present or
future, direct or indirect parents, subsidiaries, affiliated entities that rely on and utilize Aetna’s
CPB No. 327 and Aetna Life Insurance Company’s claims processing systems and procedures,
and their respective plan administrators, shareholders, directors, officers, employees, trustees,
accountants, representatives, administrators, insurers, agents and attorneys with respect to any
Commercial Plan covered by this Agreement.” Id. ¶ 51.
Notice to class members will include the following language about this release: “Members
of the settlement class will ‘release’ their claims as part of the settlement, which means they
cannot participate in another lawsuit against Aetna for the same issues in this lawsuit. The full
terms of the release can be found [here].” Dkt. No. 132-9 at 9. Notice to Category A class
members, who are members of the class without submitting a claim form, further includes the
following language:
“You can opt out. If you do, you will not receive payment and cannot
object to the settlement. However, you will not be bound or affected
by anything that happens in this lawsuit and may be able to file your
own case. You cannot exclude yourself from the policy changes
called for by the proposed settlement.”
Id. at 14. Notice to all other class members, who must submit a claim form to be part of the class,
explains what to do if an individual does not want to be part of the settlement:
“Do not send in a claim form. You will not receive any money and
you will not be bound by anything that happens in this lawsuit and
may be able to file your own case. You cannot exclude yourself from
the policy changes called for by the proposed settlement.”
Id. at 30.
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Incentive Awards: According to the Settlement Agreement, Defendants agree to pay an
incentive award to the named Plaintiff of $15,000. SA ¶ 115. If approved by the Court, this
award will be paid separate and apart from the Default or Pro Rata Payments and the Special
Harms Common Fund. Id.
Attorneys’ Fees and Costs: The Settlement Agreement provides that Class Counsel will
apply for attorneys’ fees of $1,600,000 and for costs up to $25,000, which Defendants agree to
pay. Id. ¶ 108.
Opt-Out Procedure: Class members must object to the Settlement Agreement or opt out
(via regular mail only) within 180 days after the date of mailing of Class Notice. Id. ¶¶ 52, 116,
118.
II. PROVISIONAL CLASS CERTIFICATION
The plaintiff bears the burden of showing by a preponderance of the evidence that class
certification is appropriate under Federal Rule of Civil Procedure 23. Wal-Mart Stores, Inc. v.
Dukes, 564 U.S. 338, 350–51 (2011). Class certification is a two-step process. First, a plaintiff
must establish that each of the four requirements of Rule 23(a) is met: numerosity, commonality,
typicality, and adequacy of representation. See id. at 349. Second, a plaintiff must establish that
at least one of the bases for certification under Rule 23(b) is met. Where a plaintiff seeks to certify
a class under Rule 23(b)(2), it must show that “the party opposing the class has acted or refused to
act on grounds that apply generally to the class, so that final injunctive relief or corresponding
declaratory relief is appropriate respecting the class as a whole.” Fed. R. Civ. P. 23(b)(2). And
where a plaintiff seeks to certify a class under Rule 23(b)(3), it must show that “questions of law
or fact common to class members predominate over any questions affecting only individual
members, and that a class action is superior to other available methods for fairly and efficiently
adjudicating the controversy.” Fed. R. Civ. P. 23(b)(3).
“The criteria for class certification are applied differently in litigation classes and
settlement classes.” In re Hyundai & Kia Fuel Econ. Litig., 926 F.3d 539, 556 (9th Cir. 2019).
When deciding whether to certify a litigation class, a district court must consider manageability at
trial. Id. However, this concern is not present when certifying a settlement class. Id. at 556–57.
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In deciding whether to certify a settlement class, a district court “must give heightened attention to
the definition of the class or subclasses.” Id. at 557.
A. Rule 23(a) Certification
The Court finds that all the requirements of Rule 23(a) are met for both the Proposed
National Injunctive Relief Class and the Proposed California Damages Class:
• Numerosity. Joinder of the thousands of estimated Injunctive Relief Class Members
nationwide would be impracticable. See Tanner Decl. ¶ 57. Plaintiff also expects the
Damages Class to be between 100 and 175 people based on Defendants’ records and
experience in the Goidel litigation. See id. ¶¶ 60–61. This is sufficiently numerous for
certification.
• Commonality. Common questions of law and fact include whether Defendants’
Definition of Infertility discriminated based on sex, including sexual orientation and
gender identity, in violation of Section 1557 of the ACA. See Mot. at 21.
• Typicality. Plaintiff’s claims are both factually and legally similar to those of the putative
class because, like Plaintiff, all class members are people with uteruses in LGBTQ+
relationships and members of plans incorporating Defendants’ Definition of Infertility.
See Mot. at 14–15.
• Adequacy of Representation. The Court is unaware of any actual conflicts of interest in
this matter, and no evidence in the record suggests that either Plaintiff or counsel have a
conflict with other class members. Plaintiff’s counsel have been appointed class counsel in
numerous federal and state class actions. See Peterson-Fisher Decl. ¶¶ 9–11, 15–16; Dkt.
No. 132-2 (“Chan Decl.”) ¶¶ 5, 8–9; Tanner Decl. ¶¶ 37, 43, 49. The Court finds that
proposed Class Counsel and Plaintiff have prosecuted this action vigorously on behalf of
the class to date and will continue to do so.
B. Rule 23(b)(2)
The Court also finds that the requirements of Rule 23(b)(2) are met for the National
Injunctive Relief Class because Defendants’ Definition of Infertility was allegedly incorporated
into their plans nationwide and used to determine whether to deny or grant preauthorization or
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claims for fertility treatment across the class, making final injunctive relief or corresponding
declaratory relief appropriate respecting the class as a whole. See Compl. ¶ 21; Mot. at 23.
C. Rule 23(b)(3)
The Court also finds that the predominance and superiority requirements of Rule 23(b)(3)
are met for the California Damages Class:
• Predominance. The Court concludes that common questions predominate here because
the common question of whether Defendants’ Definition of Infertility imposed more
burdensome requirements for plan members in LGBTQ+ relationships seeking fertility
treatment than it did for cisgender members in heterosexual relationships, and thus whether
it facially discriminated in violation of Section 1557, predominates over any individual
questions.
• Superiority. A class action in this case enables the most efficient use of Court and
attorney resources and reduces costs to the class members by allocating costs among them.
Cf. Leyva v. Medline Indus. Inc., 716 F.3d 510, 515 (9th Cir. 2013) (finding superiority
where named plaintiff’s claim was for less than $10,000). Further, this forum is
appropriate, and manageability is not a relevant consideration in the settlement approval
context.
D. Class Representative and Class Counsel
Because the Court finds that Plaintiff meets the commonality, typicality, and adequacy
requirements of Rule 23(a), the Court appoints Plaintiff as Class Representative. When a court
certifies a class, it must also appoint class counsel. Fed. R. Civ. P. 23(c)(1)(B). Counsel have
investigated and litigated this case throughout its existence and have submitted declarations
detailing their expertise in representing plaintiffs in antidiscrimination cases and class actions. See
Peterson-Fisher Decl. ¶¶ 4–21; Chan Decl. ¶¶ 4–9; Tanner Decl. ¶¶ 19–25, 29–49. Accordingly,
the Court appoints Katz Banks Kumin LLP, Altshuler Berzon LLP, and National Women’s Law
Center as Class Counsel. See Fed. R. Civ. P. 23(g)(1)(A) (listing factors courts must consider
when appointing class counsel).
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III. PRELIMINARY SETTLEMENT APPROVAL
Finding that provisional class certification is appropriate, the Court considers whether it
should preliminarily approve the parties’ class action settlement.
A. Legal Standard
Federal Rule of Civil Procedure 23(e) provides that “[t]he claims, issues, or defenses of a
certified class—or a class proposed to be certified for purposes of settlement—may be settled . . .
only with the court’s approval.” Fed. R. Civ. P. 23(e). “The purpose of Rule 23(e) is to protect
the unnamed members of the class from unjust or unfair settlements affecting their rights.” In re
Syncor ERISA Litig., 516 F.3d 1095, 1100 (9th Cir. 2008). Accordingly, before a district court
approves a class action settlement, it must conclude that the settlement is “fundamentally fair,
adequate and reasonable.” In re Heritage Bond Litig., 546 F.3d 667, 674–75 (9th Cir. 2008).
Where the parties reach a class action settlement prior to class certification, district courts
apply “a higher standard of fairness and a more probing inquiry than may normally be required
under Rule 23(e).” Dennis v. Kellogg Co., 697 F.3d 858, 864 (9th Cir. 2012) (quotations omitted).
Such settlement agreements “must withstand an even higher level of scrutiny for evidence of
collusion or other conflicts of interest than is ordinarily required under Rule 23(e) before securing
the court’s approval as fair.” Roes, 1-2 v. SFBSC Mgmt., LLC, 944 F.3d 1035, 1048–49 (9th Cir.
2019) (quoting In re Bluetooth Headset Prods. Liab. Litig., 654 F.3d 935, 946 (9th Cir. 2011)). A
more “exacting review is warranted to ensure that class representatives and their counsel do not
secure a disproportionate benefit at the expense of the unnamed plaintiffs who class counsel had a
duty to represent.” Roes, 944 F.3d at 1049 (quotations omitted).
Courts may preliminarily approve a settlement and notice plan to the class if the proposed
settlement: (1) appears to be the product of serious, informed, non-collusive negotiations; (2) does
not grant improper preferential treatment to class representatives or other segments of the class;
(3) falls within the range of possible approval; and (4) has no obvious deficiencies. In re Lenovo
Adware Litig., No. 15-MD-02624-HSG, 2018 WL 6099948, at *7 (N.D. Cal. Nov. 21, 2018)
(citation omitted). Courts lack the authority, however, to “delete, modify or substitute certain
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provisions. The settlement must stand or fall in its entirety.” Hanlon v. Chrysler Corp., 150 F.3d
1011, 1026 (9th Cir. 1998) (quotation and citation omitted).
B. Analysis
i. Evidence of Conflicts and Signs of Collusion
The first factor the Court considers is whether there is evidence of collusion or other
conflicts of interest. See Roes, 944 F.3d at 1049. The Ninth Circuit has directed district courts to
look for “subtle signs of collusion,” which include whether counsel will receive a disproportionate
distribution of the settlement, whether the parties negotiate a “‘clear sailing’ arrangement (i.e., an
arrangement where defendant will not object to a certain fee request by class counsel),” and
whether the parties agree to a reverter that returns unclaimed funds to the defendant. Id.
Plaintiff will request up to $1,600,000 in attorneys’ fees and up to $25,000 in costs, which
Plaintiff states is a 0.64 multiplier of Class Counsel’s current lodestar. Mot. at 18. The parties
agreed to these fees through the mediator after agreeing on monetary and injunctive relief, and
Defendants will not object. Id.; SA ¶ 108. Defendants have apparently agreed to pay attorneys’
fees and costs separate from the monetary relief for the class. Mot. at 18.2 And the proposed
settlement is non-reversionary: Any remaining money in the Special Harms Common Fund after
allocation will be redistributed to the class on a pro rata basis, SA ¶¶ 50, 74, and unclaimed
payments will be made to the California Controller’s Unclaimed Property Division “such that
California Damages Class Members may claim their awards . . . at a later date,” id. ¶ 80.
Because the Settlement Agreement contains a clear sailing provision, the Court “has a
heightened duty to peer into the provision and scrutinize closely the relationship between
attorneys’ fees and benefit to the class, being careful to avoid awarding ‘unreasonably high’ fees
simply because they are uncontested.” In re Bluetooth Headset, 654 F.3d at 948. The Ninth
Circuit “has signed off on two methods for determining reasonable attorneys’ fees in class actions:
the ‘lodestar’ method and the ‘percentage-of-recovery’ method.” In re Cal. Pizza Kitchen Data
2 The Court cannot find a provision in the Settlement Agreement that explicitly mentions this, but
nothing in the agreement permits a deduction from the monetary relief for fees. The Court will
confirm this was the case at final approval.
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Breach Litig., 129 F.4th 667, 679 (9th Cir. 2025). Because “injunctive relief is inherently difficult
to monetize,” Kim v. Allison, 8 F.4th 1170, 1181 (9th Cir. 2021), courts tend to use the lodestar
method in class actions that result in injunctive relief. See Hanlon, 150 F.3d at 1029; Lilly v.
Jamba Juice Co., No. 13-CV-02998-JST, 2015 WL 2062858, at *5 (N.D. Cal. May 4, 2015)
(“Because the settlement resulted in injunctive relief, the lodestar method is the appropriate
measure for calculating attorneys’ fees.”). The “[b]enefit to the class is the ‘[f]oremost’
consideration” in assessing the reasonableness of attorneys’ fees. Kim, 8 F.4th at 1181 (quotation
omitted); see also In re Cal. Pizza Kitchen, 129 F.4th at 679 (holding that the “touchstone” for the
attorneys’ fees “analysis is ‘the benefit to the class’—class counsel can only reap rewards if they
have delivered results for class members” (quotation omitted)).
The Court does not find the proposed award so disproportionate as to raise concerns at this
preliminary approval stage. Given Plaintiff’s representations, it appears that the monetary relief
will likely be between $1,250,000 and $2,000,000. SA ¶ 110; Tanner Decl. ¶¶ 60–61. More
significantly, Plaintiff appears to have achieved one of her primary goals of extending the policy
changes from Goidel to a nationwide class and ensuring Defendants’ policies provide equal
treatment to LGBTQ+ couples. At this stage, these apparently significant benefits to the class
withstand the Court’s scrutiny.
In addition, the Court does not find that the Settlement Agreement’s clear sailing provision
creates an inference of collusion or conflict that warrants invalidating the settlement as a whole.
The parties represent that the Settlement Agreement is “a result of arm’s length negotiations,”
Peterson-Fisher Decl. ¶ 69, and the Agreement was facilitated through extensive discussions
overseen by a neutral mediator, thereby reducing the likelihood of fraud or collusion. See Estorga
v. Santa Clara Valley Transp. Auth., No. 16-CV-02668-BLF, 2020 WL 7319356, at *6 (N.D. Cal.
Dec. 11, 2020).
Nevertheless, the Court is cognizant of its obligation to review class fee awards with rigor,
and at the final approval stage the Court will scrutinize the circumstances and determine what fee
award is appropriate in this case. At that point, the Court must “(1) explain[ ] why the value of the
injunctive relief’s benefits to individual class members was readily quantifiable and worth [the
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estimated value] or (2) exclude[ ] the injunctive relief from the valuation of the settlement and
explain[ ] why attorneys’ fees . . . were justified.” Kim, 8 F.4th at 1181 (quotations omitted). The
Court will independently assess the reasonableness of Plaintiff’s fee request, evaluating Plaintiff’s
billing records, the benefits obtained for the class, and the risks of further litigation. See Hanlon,
150 F.3d at 1029.
ii. Preferential Treatment
The Court next considers whether the Settlement Agreement provides preferential
treatment to any class members. The Ninth Circuit has instructed that district courts must be
“particularly vigilant” for signs that counsel have allowed the “self-interests” of “certain class
members to infect negotiations.” In re Bluetooth Headset, 654 F.3d at 947. Under Rule 23(e), the
Settlement Agreement must “treat class members equitably relative to each other.” Fed. R. Civ. P.
23. For that reason, courts in this district have consistently stated that preliminary approval of a
class action settlement is inappropriate where the proposed agreement “improperly grant[s]
preferential treatment to class representatives.” Lenovo, 2018 WL 6099948, at *8 (quotations
omitted).
The Court finds that the Agreement satisfies this standard for purposes of preliminary
approval. First, all class members will receive the Default or Pro Rata Payment and the Default
Dollars for Benefits Payment, SA ¶¶ 70, 71, and all class members will have the opportunity to
submit a claim for higher amounts from the Special Harms Common Fund and for a higher
Dollars for Benefits Payment, such that class members with higher substantiated damages will get
a higher recovery, id. ¶¶ 71(ii), 73.
Second, the Settlement Agreement authorizes Class Counsel to apply for an incentive
award for the Class Representative of up to $15,000. Id. ¶ 115. The Court will ultimately
determine whether the representative is entitled to such an award and the reasonableness of the
amount requested. Incentive awards “are intended to compensate class representatives for work
done on behalf of the class, to make up for financial or reputational risk undertaken in bringing the
action.” Rodriguez v. West Publ’g Corp., 563 F.3d 948, 958–59 (9th Cir. 2009). Plaintiff must
provide sufficient evidence to allow the Court to evaluate this award “individually, using ‘relevant
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factors includ[ing] the actions the plaintiff has taken to protect the interests of the class, the degree
to which the class has benefitted from those actions, . . . [and] the amount of time and effort the
plaintiff expended in pursuing the litigation.’” Stanton v. Boeing Co., 327 F.3d 938, 977 (9th Cir.
2003) (quotation omitted). The Court will consider the evidence presented at the final fairness
hearing and evaluate the reasonableness of any incentive award request. Since the proposed
incentive award here is not per se unreasonable and is comparable to the recovery for the average
class member, the Court finds that this factor weighs in favor of preliminary approval. See
Rodriguez, 563 F.3d at 958 (finding that “[i]ncentive awards are fairly typical in class action
cases” and “are discretionary” (emphasis omitted)).
iii. Settlement Within Range of Possible Approval
The third factor the Court considers is whether the settlement is within the range of
possible approval. To evaluate whether the settlement amount is adequate, “courts primarily
consider plaintiffs’ expected recovery balanced against the value of the settlement offer.” Lenovo,
2018 WL 6099948, at *8 (quotation omitted). This requires the Court to evaluate the strength of
Plaintiff’s case.
The Settlement Agreement provides comprehensive injunctive relief. It makes nationally
enforceable the important policy change achieved in Goidel: the classification of IUI and ICI as
standard diagnostic medical benefits covered on equal terms for all commercial plan members.
See SA ¶¶ 61, 64. This settlement ensures that Defendants will not roll back the changes they
made to CPB 327 and provides enforceable relief to a national class. The Settlement Agreement
also grants further relief by ensuring that individuals who have previously met the criteria set forth
in CPB No. 327 for ART coverage will not be required to undergo additional cycles of artificial
insemination before qualifying for ART coverage for subsequent pregnancy attempts and that the
limited availability of a plan member’s chosen sperm may be considered by Defendants’ medical
directors for the purpose of qualifying for IVF coverage. Id. ¶¶ 62–63; see also Tanner Decl. ¶ 54.
These substantial benefits place this settlement well within the range of possible approval,
particularly when weighed against the risks of further litigation.
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A comparison of monetary relief in the Settlement Agreement to the expected recovery at
trial also supports the reasonableness of the settlement at this stage. Plaintiff’s counsel estimates,
based on investigation of the average costs of IUI cycles and the estimated average number of
cycles class members underwent, that the average cost of out-of-pocket medical expenses for class
members totaled $10,869. Peterson-Fisher Decl. ¶¶ 53, 58–59. Given that some of these costs
likely include testing and monitoring covered as diagnostic, Plaintiff’s counsel estimates that the
damages recoverable through this lawsuit are likely less than $10,869 for most class members. Id.
¶ 60. Based on Plaintiff’s estimates of the class size, the Settlement Agreement therefore provides
roughly a full recovery for class members. Although the total number of class members is
uncertain, the Settlement Agreement provides for a minimum of $11,408 per class member if the
total class is less than 175 people. Id. ¶ 61. If the class size is larger than 175 people, class
members will receive a pro rata share of a $1,750,000 common fund, plus a minimum of $1,408
per class member in the Dollars for Benefits Payment. Id. ¶¶ 52–53, 61. Class members will have
the opportunity to submit a claim for greater recovery from the Special Harms Common Fund and
for a higher Dollars for Benefits Payment, such that the settlement will not undercompensate class
members with higher substantiated damages. SA ¶¶ 71(ii), 73. Thus, unless the class size is much
larger than expected, class members will receive close to a full monetary recovery.
Finally, Plaintiff argues that continuing the litigation would create significant risks and
result in substantial delay, expenses, and potential harm to class members. Mot. at 28–29
(discussing specific risks, including challenges for damages and injunctive class at class
certification stage). Given these risks and the fact that the settlement amount enables class
members to receive nearly a full recovery, the Court finds that the settlement amount is reasonable
and weighs in favor of granting preliminary approval.
//
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iv. Obvious Deficiencies
The Court also considers whether there are obvious deficiencies in the Settlement
Agreement. See Mot. at 24–25. The Court finds no obvious deficiencies and therefore finds that
this factor weighs in favor of preliminary approval.3
* * *
Having weighed the relevant factors, the Court preliminarily finds that the Settlement
Agreement is fair, reasonable, and adequate, and GRANTS preliminary approval. The Court
DIRECTS the parties to include both a joint proposed order and a joint proposed judgment when
submitting their motion for final approval. The proposed order should thoroughly address all of
the topics set forth in the Northern District’s Procedural Guidance for Class Action Settlements.4
The parties should also review this Court’s recent orders granting final approval of class action
settlements and draft their proposed order accordingly.5
IV. PROPOSED CLASS NOTICE PLAN
For Rule 23(b)(3) class actions, “the court must direct to the class members the best notice
that is practicable under the circumstances, including individual notice to all members who can be
identified through reasonable effort.” Fed. R. Civ. P. 23(c)(2)(B). Individual notice must be sent
to all class members “whose names and addresses may be ascertained through reasonable effort.”
Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 173 (1974). District courts have “broad power and
discretion vested in them by [Rule 23]” in determining the contours of appropriate class notice.
See Reiter v. Sonotone Corp., 442 U.S. 330, 345 (1979).
3 At oral argument, the Court expressed concern with some language in the Settlement Agreement
that suggested that the Special Master would determine who did and didn’t qualify as a class
member. As requested, the parties submitted an amended agreement, which clarifies that the
Special Master’s role is limited to resolving eligibility determinations by confirming if a claimant
has provided sufficient information to verify their membership in the class. See Dkt. No. 138-1.
4 See Procedural Guidance for Class Action Settlements, https://cand.uscourts.gov/rules-forms-
fees/northern-district-guidelines/procedural-guidance-class-action-settlements (updated Sept. 5,
2024).
5 See, e.g., Stiner v. Brookdale Senior Living, Inc., No. 17-CV-03962-HSG, 2025 WL 2998163
(N.D. Cal. Oct. 24, 2025); Pardi v. Tricida, Inc., No. 21-CV-00076-HSG, 2025 WL 2988737
(N.D. Cal. Oct. 23, 2025); Smith v. Apple, Inc., No. 21-CV-09527-HSG, 2025 WL 1266927 (N.D.
Cal. May 1, 2025).
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With respect to the content of the notice itself, the notice must clearly and concisely state
in plain, easily understood language:
(i) the nature of the action;
(ii) the definition of the class certified;
(iii) the class claims, issues, or defenses;
(iv) that a class member may enter an appearance through an attorney
if the member so desires;
(v) that the court will exclude from the class any member who
requests exclusion;
(vi) the time and manner for requesting exclusion; and
(vii) the binding effect of a class judgment on members[.]
Fed. R. Civ. P. 23(c)(2)(B).
The parties have agreed that a third-party settlement administrator, Atticus Administration,
will send the class notice. SA ¶¶ 9, 85. Notice will be sent by direct mail. Peterson-Fisher Decl.
¶ 87. Notice will also be sent electronically via secure messages to Aetna members who utilize
Aetna’s secure online portal, and push notifications will be sent to those utilizing Aetna’s mobile
application. Id. ¶¶ 86–89. Ads will also be placed in publications whose target audience is the
California LGBTQ+ community, including social media ad placements. Id. Class members will
be able to submit their claims either online or by mail. Id. ¶ 89.
The Court finds that the proposed notice process is “reasonably calculated, under all the
circumstances, to apprise all class members of the proposed settlement.” Roes, 944 F.3d at 1047
(quotation omitted). Sending messages via Aetna’s secure online portal is particularly well-
calculated to provide notice by more effective electronic means while avoiding potential privacy
concerns that could arise when sending messages about the sensitive health information involved
in this case to a member’s work email address. See Peterson-Fisher Decl. ¶ 88.
As to the substance of the notice, the parties have provided a copy of claim forms, see Dkt.
No. 132-10, and the proposed class notices, see Dkt. No. 132-9, for all categories of class
members. All of the notices explain the nature of the action and claims, define the class, and
inform class members about what payment they will receive and how to opt out of or object to the
Settlement Agreement. See Dkt. No. 132-9. Additionally, the proposed notices comply with the
Northern District of California Procedural Guidance for Class Action Settlements, inform the
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classes about the allocation of attorneys’ fees, costs, and service award, and provide specific
information regarding the date, time, and place of the final approval hearing.
To better enable class members to review the anticipated motion for attorneys’ fees and the
motion for any additional award to Plaintiff, Class Counsel shall include language in the notices:
(1) indicating the deadline for filing the attorneys’ fees motion and request for Plaintiff’s award;
and (2) informing class members how to access the motion and supporting materials. See In re
Mercury Interactive Corp. Sec. Litig., 618 F.3d 988, 993–94 (9th Cir. 2010) (holding that
under Rule 23(h), class members must be given a full and fair opportunity to examine and object
to attorneys’ fees motion).
The Court finds that with these changes, the proposed notices provide the best notice
practicable under the circumstances and fully comply with due process and Federal Rule of Civil
Procedure 23.
V. CONCLUSION
The Court GRANTS Plaintiff’s motion for preliminary approval of class action settlement,
Dkt. No. 132. The Court appoints Atticus Administration as the Settlement Administrator and
Hon. Steven M. Gold (Ret.), of JAMS ADR as Special Master,6 and directs them to comply with
the terms of the Settlement Agreement.7 The parties are further DIRECTED to implement the
proposed class notice plan and procedure, described below. The parties are also DIRECTED to
submit a stipulation and proposed order containing the same schedule, filled in with actual dates,
by December 31, 2025.
Defendants to provide necessary data to
Administrator for Class Notice
5 days after Preliminary Approval Order
Class Notice to be mailed 14 days after Preliminary Approval Order
6 The Court incorporates by reference Judge Gold’s fee schedule. See Dkt. No. 132-5, Appendix
C.
7 The Court may only appoint a special master after “the master files an affidavit disclosing
whether there is any ground for disqualification under 28 U.S.C. § 455.” Fed. R. Civ. P.
53(b)(3)(A). The Court DIRECTS Plaintiff to file this affidavit by December 31, 2025.
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Motion for Attorneys’ Fees, Costs, Service
Award due
May 25, 2026
Response Deadline 180 days after Class Notice is mailed
Special Harm submissions sent to Special
Master where validity of claims for eligibility
purposes is determined
15 days after Response Deadline
Deadline to notify class members/potential
class members of deficiencies
30 days after Response Deadline
Last day for corrections to deficient
submissions
60 days after Response Deadline
Last day for Special Master to determine
disputes re: validity of claims for eligibility
purposes; preliminary Special Harms
Allocations to parties/Administrator
75 days from Response Deadline
Administrator to report final class size to the
parties, deadline for Aetna to determine
Dollars for Benefits Payments
80 days from Response Deadline
Deadline for final Special Harms Allocation
determinations, resolution of contested
Dollars for Benefits Payments, redistribution
payments to be determined
95 days after Response Deadline
Final Approval Motion due October 12, 2026
Fairness Hearing November 12, 2026
Funding Date 30 days after Effective Date
Payment date for settlement awards, Dollars
for Benefits Payments, service award,
attorneys’ fees and costs
10 business days after Funding Date
Payment date for Dollars for Benefits
Payments
60 days after the Effective Date
Check-cashing deadline 180 days after initial issuance, at least 90 days
for re-issued checks
Plaintiff’s Motion for Attorneys’ Fees, Costs, and Service Award is due on May 25, 2026.
Plaintiff’s Final Approval Motion is due on October 12, 2026. The Court will hold a Fairness
Hearing on November 12, 2026, at 2:00 p.m., in Courtroom 2 on the 4th floor of the Oakland
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Courthouse, 1301 Clay Street, Oakland, CA 94612.
IT IS SO ORDERED.
Dated:
______________________________________
HAYWOOD S. GILLIAM, JR.
United States District Judge
12/17/2025
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