Frequently Asked Questions

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

The Court in charge of this case is the Circuit Court of Jefferson County, Kentucky. The case is known as Smith, et ano v. BHG XXXIV, LLC, et ano, No. 24-CI-002796 (the “Litigation”). The people who filed the Litigation are called the Plaintiffs and the entities they sued, BHG XXXIV, LLC and BHG Holdings, LLC, are called the Defendants.

The Litigation claims that BHG was responsible for failing to prevent the Data Incident and asserts claims such as: negligence, negligence per se, breach of express contract, breach of implied contract, breach of fiduciary duty, and unjust enrichment. The Litigation seeks, among other things, payment for persons who were injured by the Data Incident.

BHG has denied and continues to deny all of the claims made in the Litigation, as well as all charges of wrongdoing or liability against it.

In a class action, one or more people called Class Representatives sue on behalf of people who they allege have similar claims. Together, all these people are called a “Settlement Class” or “Settlement Class Members.” One Court and one judge resolves the issues for all Class Members, except for those who exclude themselves from the Class.

The Court did not decide in favor of the Plaintiffs or BHG. Instead, the Plaintiffs negotiated a settlement with BHG that allows both the Plaintiffs and BHG to avoid the risks and costs of lengthy and uncertain litigation and the uncertainty of a trial and appeals. It also allows Settlement Class Members to obtain payment and credit monitoring services without further delay. The Class Representatives and their attorneys think the Settlement is best for all Settlement Class Members. This Settlement does not mean that BHG did anything wrong.

You are part of this Settlement as a Settlement Class Member if BHG possesses your address and your personal information may have been compromised in the Data Incident. This includes persons who were sent a notification from BHG pertaining to the Data Incident.

You are part of this Settlement as an Injunctive Relief Class Member if your personally identifiable information may have been impacted as a result of the Data Incident. If you are an Injunctive Relief Class Member and not a Settlement Class Member, you are not eligible to submit a Claim Form for benefits under the Settlement.

Yes. Specifically excluded from the Settlement Class are Defendants’ officers and directors, as well as (i) all Settlement Class Members who timely and validly request exclusion from the Settlement Class; (ii) the judges assigned to the Litigation and to evaluate the fairness, reasonableness, and adequacy of this settlement; and (iii) any other individual found by a court of competent jurisdiction to be guilty under criminal law of perpetrating, aiding or abetting the criminal activity occurrence of the Data Incident or who pleads nolo contendere to any such charge.

BHG will create a Settlement Fund of $1,575,000, which will be used to pay for (i) reasonable Notice and Claims Administration Costs incurred pursuant to the Settlement Agreement as approved by the Parties and approved by the Court; (ii) any taxes owed by the Settlement Fund; (iii) any Service Awards approved by the Court; (iv) any Fee Award, Costs, and Expenses as approved by the Court; and (v) any benefits to Settlement Class Members, pursuant to the terms and conditions of the Settlement. The benefits to Settlement Class Members are explained below:

Alternative Cash Payment: As an alternative to a claim for unreimbursed losses, lost time, and/or credit monitoring (described below), Settlement Class Members may submit a claim to receive a pro rata cash payment from the Settlement Fund (“Alternative Cash Payment”). The amount of the Alternative Cash Payment will be calculated in accordance with the Settlement Agreement, which provides for a distribution of the Settlement Fund to first cover other costs and then distribute the remaining funds evenly amongst Settlement Class Members who elected to receive an Alternative Cash Payment. Plaintiffs estimate that the amount of the Alternative Cash Payment will be $150, but this could increase or decrease. In any event, the amount will not exceed $250.

Compensation for Unreimbursed Losses and Credit Monitoring

The Settlement provides compensation for the following unreimbursed losses:

1. Time Spent: Up to eight (8) hours of lost time at a rate of $25 per hour for time spent dealing with the Data Incident, if the Settlement Class Member spent at least one-half (0.5) hours dealing with the Data Incident;
2. Ordinary Out-of-Pocket Expenses or Losses: Out-of-pocket expenses up to $200 incurred as a result of the Data Incident, including: documented bank fees, long distance phone charges, cell phone charges (only if charged by the minute), data charges (only if charged based on the amount of data used), postage, gasoline for local travel, and fees for credit reports, credit monitoring, or other identity theft insurance product purchased between December 5, 2021 and October 22, 2024.
3. Extraordinary Out-of-Pocket Expenses or Losses: Out-of-pocket expenses up to $5,000 directly arising from identity theft or other fraud perpetuated on or against the Settlement Class Member as a result of the Data Incident.

Compensation for lost time requires only an attestation that any claimed lost time was spent related to the Data Incident. 

Compensation for unreimbursed losses (except for lost time), shall be paid only if: (1) the loss is an actual, documented, and unreimbursed monetary loss; (2) the loss was more likely than not caused by the Data Incident; and (3) the Settlement Class Member made reasonable efforts to avoid, or seek reimbursement for, the loss, including but not limited to exhaustion of all available credit monitoring insurance and identity theft insurance. 

4. Credit Monitoring and Identity Theft Protection Services: Settlement Class Members who do not opt for the Alternative Cash Payment are eligible to receive 24 months of credit monitoring and identity theft protection services free of charge. The credit monitoring and identity theft protection services will be provided to all valid Claimants who timely enroll in these services for a period of 24 months from the date of activation, including daily three-bureau credit monitoring with Equifax, Experian, and TransUnion; identity restoration services; and $1 million in identity theft insurance, among other features.

In addition, BHG has agreed to implement certain data security measures for a period of two (2) years after the Settlement receives Final approval by the Court. BHG must:

1. Undertake measures to secure, or securely destroy if and when it is no longer needed for legitimate business purposes, all personal information that was subject to the Data Incident, and confirm that this has been completed;
2. Maintain a written information security policy and require their employees to acknowledge receipt of and compliance with their written information security policy;
3. Conduct cybersecurity training that contains annual mandatory classes, new hire orientation, and periodic training updates to necessary staff as new information security issues and trends arise;
4. Maintain a written password policy that requires appropriate password complexity commensurate to sensitivity level to the system; 
5. Conduct an annual review of all data security policies to ensure that all data security policies are being followed and consider whether any updates are needed to meet industry best practices;
6. Use Multi-Factor Authentication where available and appropriate;
7. Implement a next-generation end-point security solution;
8. Integrate a 24/7 third-party security operations center;
9. Require closer integration between the Network Operations Center and Security Operations Center;
10. Engage a third-party for quarterly external penetration testing and annual internal, including Wi-Fi, penetration testing;
11. Review privileged access accounts periodically;
12. Implement a Formal Change Control process;
13. Review HIPAA privacy and security policies periodically; and
14. Engage a third-party for review of Office365 and Azure Security.

To ask for a payment*, you must complete and submit a Claim Form. Claim Forms are available in the document section of this Settlement Website, or you may also submit your Claim Form online. You may also request one by mail by calling (833) 522-3131. Read the instructions carefully, fill out the Claim Form, and either submit it online or mail it postmarked no later than October 22, 2024, to:

Settlement Administrator - 83054
c/o Kroll Settlement Administration LLC
P.O. Box 225391
New York, NY 10150-5391
*Please note that Injunctive Class Relief Members are not eligible to receive payment under this Settlement. If you are unsure if you qualify for a payment, please contact the Settlement Administrator at (833) 522-3131.

The Settlement Administrator will initially decide whether the information provided on a Claim Form is complete and valid. The Settlement Administrator may require additional information from any Claimant. If the required information is not timely provided, the claim will be considered invalid and will not be paid.

Additional information regarding the claims process can be found in Section VI of the Settlement Agreement.

The Court will hold a Final Approval Hearing at 1:30 p.m. on October 29, 2024 to decide whether to approve the Settlement. If the Court approves the Settlement, there may be appeals. It is always uncertain whether any appeals can be resolved favorably and resolving them can take time. It also takes time for all the Claim Forms to be processed, depending on the number of claims submitted and whether any appeals are filed. Please be patient.

You do not have to do anything to remain in the Settlement, but if you want a payment or credit monitoring services you must submit a Claim Form postmarked or submitted online by October 22, 2024.

If the Settlement becomes Final, you will give up your right to sue Defendants and the Released Persons for the claims being resolved by this Settlement. The specific claims you are giving up against Defendants are described in Section XV of the Settlement Agreement. You will be “releasing” Defendants and the Released Persons and all related people or entities as described in Section XV of the Settlement Agreement. The Settlement Agreement is available in the documents section of this Settlement Website.

The Settlement Agreement describes the released claims with specific descriptions, so read it carefully. If you have any questions about what this means you can talk to the law firms listed in Question 19 for free or you can talk to your own lawyer at your own expense.

If you do not want a payment from this Settlement, but you want to keep the right to sue Defendants about issues in the Litigation, then you must take steps to get out of the Settlement Class. This is called excluding yourself from—or is sometimes referred to as “opting out” of—the Settlement Class. If you are an Injunctive Relief Class Member only and not a Settlement Class Member, you cannot exclude yourself from the Settlement.

No. If you exclude yourself from the Settlement, you will not be entitled to any benefits of the Settlement, but you will not be bound by any judgment in this case.

No. Unless you exclude yourself from the Settlement, you give up any right to sue Defendants and Released Persons for the claims that this Settlement resolves. You must exclude yourself from the Settlement Class to start your own lawsuit or to be part of any different lawsuit relating to the claims in this case. If you exclude yourself, do not submit a Claim Form to ask for a payment.

To exclude yourself from the Settlement, you must send a letter (“Opt-Out Request”) by mail stating that you want to be excluded from the Settlement. Your Opt-Out Request must (a) state your full name, address, and telephone number; (b) contain your personal and original signature (or the original signature of a person authorized by law, such as a trustee, guardian, or person acting under a power of attorney to act on your behalf with respect to a claim or right such as those in the Litigation); and (c) state unequivocally your intent to be excluded from the Settlement Class and from the Settlement. You must mail your Opt-Out Request postmarked no later than September 23, 2024 to:

Settlement Administrator - 83054
c/o Kroll Settlement Administration LLC
P.O. Box 225391
New York, NY 10150-5391 

Yes. The Court appointed Ben Barnow of Barnow and Associates, P.C. and John A. Yanchunis of Morgan & Morgan to represent you and other Settlement Class Members. These lawyers are called Class Counsel. You will not be charged for these lawyers. If you want to be represented by your own lawyer, you may hire one at your own expense.

If the Settlement is approved and becomes Final, Class Counsel will ask the Court to award attorneys’ fees not to exceed $525,000, and reasonable costs and expenses incurred in prosecuting the action. Class Counsel will also request approval of a Service Award of $2,500 for each of the two Class Representatives.

If you are a Settlement Class Member, you can object to the Settlement if you do not like it or a portion of it. You can give reasons why you think the Court should not approve the Settlement. The Court will consider your views before making a decision. To object, you must file with the Court and mail copies to Class Counsel and BHG’s Counsel a written notice stating that you object to the Settlement (“Objection”).

Your objection must:

1. identify the case name and number;
2. state your full name, current mailing address, and telephone number;
3. contain your original signature;
4. state that you object to the Settlement, in whole or in part;
5. set forth a statement of the legal and factual basis for the objection; and
6. provide copies of any documents that you wish to submit in support of your position.

If you intend to appear at the Final Approval Hearing, either with or without counsel, you must also file a notice of appearance with the Court (as well as serve the notice on Class Counsel and BHG’s Counsel) by the Objection Deadline.

Your Objection must be filed with the Clerk for the Circuit Court of Jefferson County (located at 600 W. Jefferson Street, Suite 2008, Louisville, KY 40202), and served upon Class Counsel and BHG’s Counsel at the addresses below no later than September 23, 2024.
 

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

The Court will hold a Final Approval Hearing at: 1:30 p.m. on October 29, 2024, in the Circuit Court of Jefferson County, 700 W. Jefferson St., Louisville, KY 40202. At this Final Approval Hearing, the Court will consider whether the Settlement is fair, reasonable, and adequate. The Court will take into consideration any properly-filed written objections and may also listen to people who have asked to speak at the hearing. The Court will also decide whether to approve attorneys’ Fee Award, Costs, and Expenses to Class Counsel, and the Service Awards to the Class Representatives.

No. Class Counsel will answer any questions the Court may have. However, you are welcome to attend at your own expense. If you file an objection, you do not have to come to Court to talk about it. You may also hire your own lawyer to attend, at your own expense, but you are not required to do so.

Yes, you may ask the Court for permission to speak at the Final Approval Hearing. To do so, you must follow the instructions provided in Question 19 above. You cannot speak at the hearing if you exclude yourself from the Settlement.

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

Yes. This Notice summarizes the proposed Settlement. More details are in the Settlement Agreement, which is available on the Documents section of this Settlement Website, or by writing to the Settlement Administrator at Settlement Administrator – 83054 c/o Kroll Settlement Administration LLC, P.O. Box 225391 New York, NY 10150-5391.

In order to get more information about the proposed Settlement or to change your information, please use the contact us page, call (833) 522-3131, or write to the Settlement Administrator at Settlement Administrator – 83054 c/o Kroll Settlement Administration LLC P.O. Box 225391 New York, NY 10150-539.