Arville Winans v. Emeritus Corp. Settlement

Frequently Asked Questions

  1. WHAT IS THIS LAWSUIT ABOUT?
  2. WHY IS THERE A SETTLEMENT?
  3. WHO IS IN THE SETTLEMENT CLASS?
  4. WHAT ARE THE SETTLEMENT BENEFITS?
  5. HOW IS THE CASH PAYMENT DETERMINED?
  6. HOW CAN I GET A CASH PAYMENT, AND HOW CAN LEGAL SUCCESORS GET A CASH PAYMENT IF THE CLASS MEMBER IS DECEASED?
  7. WHEN WILL I RECEIVED MY SETTLEMENT AWARD?
  8. IN RETURN FOR THESE SETTLEMENT BENEFITS, WHAT AM I GIVING UP?
  9. DO I HAVE A LAWYER IN THIS CASE?
  10. HOW DO I GET OUT OF THE SETTLEMENT?
  11. IF I DON’T EXCLUDE MYSELF, CAN I SUE DEFENDANTS FOR THE SAME THING LATER?
  12. IF I EXCLUDE MYSELF, CAN I GET MONEY FROM THIS SETTLEMENT?
  13. HOW DO I TELL THE COURT THAT I DO NOT LIKE THE SETTLEMENT?
  14. WHEN AND WHERE WILL THE COURT DECIDE WHETHER TO APPROVE THE SETTLEMENT?
  15. WHAT HAPPENS IF I DO NOTHING AT ALL?
  16. HOW DO I CONTACT CLASS COUNSEL?
  17. DEFINITION: CALIFORNIA PROBATE CODE: 13006
  18. DEFINITION: CALIFORNIA PROBATE CODE: 13050
  19. DEFINITION: CALIFORNIA PROBATE CODE: 13051



  1. WHAT IS THIS LAWSUIT ABOUT?

    Plaintiffs bring this putative class action on behalf of residents of assisted living communities operated by Emeritus in California, alleging that Emeritus made purportedly misleading statements about its computerized resident evaluation system and its role in providing sufficient staffing and care for residents, which resulted in Plaintiffs paying for additional services they did not receive under their contractual arrangements with Emeritus.  Defendants deny all allegations and are entering into this Settlement to avoid burdensome and costly litigation.  This Settlement is not an admission of wrongdoing.

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  2. WHY IS THERE A SETTLEMENT?

    The Court did not decide in favor of Plaintiffs or Defendants.  Instead, both sides agreed to a settlement.  That way, they avoid the cost of a trial and settlement benefits go to the Settlement Class members.  The Class Representatives and the attorneys think the Settlement is in the best interest of the Settlement Class Members, taking into account the benefits of the proposed Settlement, the risks of continued litigation and the delay in obtaining relief for the Class if the lawsuit continues.

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  3. WHO IS IN THE SETTLEMENT CLASS?

    You are a member of the Settlement Class if you resided at one of Emeritus’ California assisted living facilities between July 29, 2009 and May 15, 2015, and contracted with Emeritus for services for which Emeritus was paid money.

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  4. WHAT ARE THE SETTLEMENT BENEFITS?

    Defendants have agreed to provide a total settlement fund of $13 million (the “Fund”) in full settlement of the claims of the Settlement Class.  The Fund will be used to pay class notice and payment distribution administration expenses, as well as Class Counsel’s attorneys’ fees, litigation expenses and service awards to the Class Representatives.  The remaining amount (the “Net Settlement Fund”) will be used to make cash payments to Class Members (or if the Class Member is deceased, to their legal successor).  It is estimated the Net Settlement Fund will be approximately $8.5 million.  The settlement distribution process will be administered by an independent settlement administrator (the “Settlement Administrator”) approved by the Court.  The settlement amount and Net Settlement Fund are contingent on final approval by the Court.

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  5. HOW IS THE CASH PAYMENT DETERMINED?

    The cash payment amount for each Class Member will be based on this formula:  The sum of the move-in fee and initial month’s rent for the Class Member divided by the total amount of move-in fees and initial monthly rent payments for all Class Members (which yields a Settlement Payment Percentage ("SPP")), which is then multiplied by the Net Settlement Fund to calculate the cash payment amount.  By way of example, if a Class Member paid $2,000 in move-in fees and first month’s rent, and the total move-in fees and initial rent payments for the entire Class are $40 million, the SPP for the Class Member would be .00005 and the cash payment would be approximately $420. The actual cash payment amounts will be determined by the Settlement Administrator based on the above formula, and may be increased if funds are available. 

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  6. HOW CAN I GET A CASH PAYMENT, AND HOW CAN LEGAL SUCCESORS GET A CASH PAYMENT IF THE CLASS MEMBER IS DECEASED?

    If you are a Class Member you do not need to take any action. Your cash payment will be mailed to you if the Settlement is approved. If your address has changed, you must provide your new address to the Settlement Administrator.

    If the Class Member is deceased, his or her legal successor must submit a payment request and supporting documentation (a copy of the Class Member's Death Certificate and a completed Deceased Declaration form) to the Settlement Administrator. Please click here to determine who is a legal successor in interest.

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  7. WHEN WILL I RECEIVED MY SETTLEMENT AWARD?

    The Court will hold a final approval hearing on December 17, 2015 at 2:00 p.m., to decide whether to approve the Settlement.  The hearing date may be changed by the Court without notice to the Settlement Class, and you should check this website or the public court records on file in this action for any updates.  If Judge Gilliam approves the Settlement, there may be appeals.  The appeal process can take time, perhaps more than a year. 

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  8. IN RETURN FOR THESE SETTLEMENT BENEFITS, WHAT AM I GIVING UP?

    If the Court approves the proposed Settlement and you do not request to be excluded from the Class, you must release (give up) all legal claims concerning Defendants’ alleged misrepresentations and nondisclosures about Defendants’ computerized resident evaluation system (known as “We Care" or "Vigilan”) and its role in providing sufficient staffing and care for residents and any alleged overpayment as a result of such purported misrepresentations. If you remain in the Class, you may not assert any of those claims in any other lawsuit or proceeding.  This includes any other lawsuit or proceeding already in progress. The Release does not include claims for personal injury, emotional distress or bodily harm. The judgment and orders entered in this case, whether favorable or unfavorable, will bind all Settlement Class Members who do not request to be excluded.  The full terms of the Release are contained in the Stipulation of Settlement that is available in the Case Documents section of this website, or at the public court records on file in this action. 

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  9. DO I HAVE A LAWYER IN THIS CASE?

    All Settlement Class Members are represented by Plaintiffs’ Counsel.  These lawyers are called Class Counsel.  If you want to be represented by your own lawyer, you may hire one at your own expense and enter an appearance through your own counsel. Class Counsel will ask the Court to award attorneys’ fees and out-of-pocket expenses incurred not to exceed 33% of the Fund ($4.29 million).  Defendants have agreed not to oppose this request.  Any award of fees and litigation expenses must be approved by the Court as fair, reasonable and consistent with prevailing marketplace standards. The Court-awarded amount will be paid from the Fund

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  10. HOW DO I GET OUT OF THE SETTLEMENT?

    If you do not wish to be included in the Class and receive a cash payment, you must send a letter stating that you want to be excluded from Arville Winans v. Emeritus Corp. and DOES 1 through 100, case no. 3:13-cv-03962-SC (N.D. Cal.).  Be sure to include your name, address, telephone number, signature, and a statement that you are covered by this Settlement.  You must mail your exclusion postmarked no later than August 4, 2015 to:

    Winans v. Emeritus Corp. Settlement Administrator

    c/o Gilardi & Co. LLC

    P.O. Box 8060

    San Rafael, CA 94912-8060

    You cannot exclude yourself via telephone, fax, or email.  If you ask to be excluded, you will not get any settlement payment, and you cannot object to the Settlement.  However, you will not be legally bound by anything that happens in this lawsuit and you will keep your right to separately pursue claims against defendants relating to the subject matter of this lawsuit.

    If you are a Carry-Over Resident (you received the Notice mailed on October 9, 2015), your exclusion must be postmarked no later than November 23, 2015.

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  11. IF I DON’T EXCLUDE MYSELF, CAN I SUE DEFENDANTS FOR THE SAME THING LATER?

    No.  Unless you exclude yourself, you give up the right to sue Defendants for the claims that this Settlement resolves.  You must exclude yourself from this Class to pursue your own lawsuit.  Remember, your exclusion must be postmarked on or before August 4, 2015, or if you are a Carry-Over Resident, on or before November 23, 2015.

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  12. IF I EXCLUDE MYSELF, CAN I GET MONEY FROM THIS SETTLEMENT?

    No.  If you exclude yourself, you will not receive any money.  But, you will not lose any right you may have to sue (or continue to sue) in a different lawsuit against Defendants about the legal issues in this case.  If you choose to initiate a new lawsuit, your claim will be subject to time limitations, so you must act promptly. 

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  13. HOW DO I TELL THE COURT THAT I DO NOT LIKE THE SETTLEMENT?

    If you are a Settlement Class Member, you can object to the Settlement if you do not like any part of it and the Court will consider your views.  To object, you must send a letter to the Court and the parties saying that you object to the Settlement in Arville Winans v. Emeritus Corp. and DOES 1 through 100, case no. 3:13-cv-03962-SC (N.D. Cal.).  Be sure to include your name, address, telephone number, your signature, and the reasons you object to the Settlement.  You must also affirm under penalty of perjury that you are a Settlement Class Member (or a legal successor to a Class Member) or provide other proof of Settlement Class membership.  If you are represented by counsel, be sure to include the name, address, and telephone number of that lawyer.

    Your objection must be mailed to these three different places no later than August 4, 2015.
    If you are a Carry-Over Resident (you received the Notice mailed on October 9, 2015), your objection must be received no later than November 23, 2015.

    Clerk of the Court

    United States District Court,

    Northern District of California

    450 Golden Gate Avenue

    Courtroom 1 – 17th Floor

    San Francisco, CA 94102

     

    Guy B. Wallace

    Mark T. Johnson

    SCHNEIDER WALLACE COTTRELL KONECKY LLP

    180 Montgomery Street

    Suite 2000

    San Francisco, CA 94104

    Telephone: (415) 421-7100

     

    Lisa Gilford

    SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP

    300 South Grand Avenue

    Los Angeles, CA 90071

    Telephone: (213) 687-5000

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  14. WHEN AND WHERE WILL THE COURT DECIDE WHETHER TO APPROVE THE SETTLEMENT?

    The Court will hold a Final Approval Hearing on December 17, 2015 at 2:00 p.m. at the Courtroom of the Honorable Haywood S. Gilliam: 450 Golden Gate Avenue, Courtroom 15 – 18th Floor, San Francisco, CA 94102.  The hearing date may be changed by the Court without notice to the Settlement Class, and you should check this website or the public court records on file in this action at https://www.pacer.gov/ for any updates.  At this hearing, the Court will consider whether the Settlement is fair, reasonable and adequate.  If there are objections, the Court will consider them.  Judge Gilliam will listen to people who have asked to speak at the hearing.  After the hearing, the Court will decide whether to approve the Settlement.  The Court will also consider how much to award Class Counsel as reasonable attorneys’ fees and litigation expenses.  We do not know how long this decision will take.

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  15. WHAT HAPPENS IF I DO NOTHING AT ALL?

    If you do nothing, you will be part of the Settlement Class.  You will receive a cash payment from the Settlement and you will not be able to start a lawsuit, continue with a lawsuit, or be part of any other lawsuit against Defendants about the legal issues in this case.

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  16. HOW DO I CONTACT CLASS COUNSEL?

    Should you have any questions about the Settlement, please contact Class Counsel at:

    Kathryn A. Stebner

    Sarah Colby

    STEBNER & ASSOCIATES

    870 Market Street

    Suite 1212

    San Francisco, CA 94102

    Telephone: (415) 362-9800

    Facsimile: (415) 362-9801

    kathryn@stebnerassociates.com

    sarah@stebnerassociates.com

     

    Guy B. Wallace

    Mark T. Johnson

    SCHNEIDER WALLACE COTTRELL KONECKY LLP

    180 Montgomery Street

    Suite 2000

    San Francisco, CA 94104

    Telephone: (415) 421-7100

    Facsimile: (415) 421-7105

    gwallace@schneiderwallace.com

    mjohnson@schneiderwallace.com

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  17. DEFINITION: CALIFORNIA PROBATE CODE: 13006

    Successor of the decedent means:
    (a) If the decedent died leaving a will, the sole beneficiary or all of the beneficiaries who succeeded to a particular item of property of the decedent under the decedent's will. For the purposes of this part, a trust is a beneficiary under the decedent's will if the trust succeeds to the particular item of property under the decedent's will.

    (b) If the decedent died without a will, the sole person or all of the persons who succeeded to the particular item of property of the decedent under Sections 6401 and 6402 or, if the law of a sister state or foreign nation governs succession to the particular item of property, under the law of the sister state or foreign nation.

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  18. DEFINITION: CALIFORNIA PROBATE CODE: 13050

    a) For the purposes of this part:
    (1) Any property or interest or lien thereon which, at the time of the decedent's death, was held by the decedent as a joint tenant, or in which the decedent had a life or other interest terminable upon the decedent's death, or which was held by the decedent and passed to the decedent's surviving spouse pursuant to Section 13500, shall be excluded in determining the property or estate of the decedent or its value. This excluded property shall include, but not be limited to, property in a trust revocable by the decedent during his or her lifetime. 

    (2) A multiple-party account to which the decedent was a party at the time of the decedent's death shall be excluded in determining the property or estate of the decedent or its value, whether or not all or a portion of the sums on deposit are community property, to the extent that the sums on deposit belong after the death of the decedent to a surviving party, P.O.D. payee, or beneficiary. For the purposes of this paragraph, the terms "multiple-party account," "party," "P.O.D. payee," and "beneficiary" are defined in Article 2(commencing with Section 5120) of Chapter 1 of Part 2 of Division 5. 

    (b) For the purposes of this part, all of the following property shall be excluded in determining the property or estate of the decedent or its value: 

    (1) Any vehicle registered under Division 3 (commencing with Section 4000) of the Vehicle Code or titled under Division 16.5 (commencing with Section 38000) of the Vehicle Code. 

    (2) Any vessel numbered under Division 3.5 (commencing with Section 9840) of the Vehicle Code. 

    (3) Any manufactured home, mobile home, commercial coach, truck camper, or floating home registered under Part 2 (commencing with Section 18000) of Division 13 of the Health and Safety Code. 

    (c) For the purposes of this part, the value of the following property shall be excluded in determining the value of the decedent's property in this state: 

    Any amounts due to the decedent for services in the Armed Forces of the United States. 

    (2) The amount, not exceeding fifteen thousand dollars ($15,000), of salary or other compensation, including compensation for unused vacation, owing to the decedent for personal services from any employment.

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  19. DEFINITION: CALIFORNIA PROBATE CODE: 13051

    For the purposes of this part:

    (a) The guardian or conservator of the estate of a person entitled to any of the decedent's property may act on behalf of the person without authorization or approval of the court in which the guardianship or conservatorship proceeding is pending.

    (b) The trustee of a trust may act on behalf of the trust. In the case of a trust that is subject to continuing jurisdiction of the court pursuant to Chapter 4 (commencing with Section 17300) of Part 5 of Division 9, the trustee may act on behalf of the trust without the need to obtain approval of the court.

    (c) If the decedent's will authorizes a custodian under the Uniform Gifts to Minors Act or the Uniform Transfers to Minors Act of any state to receive a devise to a beneficiary, the custodian may act on behalf of the beneficiary until such time as the custodianship terminates.

    (d) A sister state personal representative may act on behalf of the beneficiaries as provided in Chapter 3 (commencing with Section 12570) of Part 13 of Division 7.

    (e) The attorney in fact authorized under a durable power of attorney may act on behalf of the beneficiary giving the power of attorney.

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