ONE OF THE MANY ORDERS OF DECEMBER 14, 2023
The Court issued many Orders on December 14, 2023 in a single insurance case. The case is of interest because the defendant raised a defense of "a filed insurance rate doctrine" to claim immunity from civil prosecution. In turn, one of the Orders of December 14, 2023 is of interest because it effectively sealed the rates from public view. The decision is reported as Benanav v. Health Paws Pet Ins. LLC, No. 2:20-cv-00421-LK, 2023 WL 8648962 (W.D. Wash. Dec. 14, 2023), and it stands at DE 237 on the PACER electronic docket of that case.
In order to understand this particular ruling, context is required, as is usual in litigation.
THE SPREADSHEET IS SEALED
Relatively early on in the case, an Exhibit E that was filed in the Court file was filed under seal. That was in August, 2022.
On February 6, 2023 the Court ordered that Exhibit E be kept under seal. We would later find out in December, 2023 that this Court understands a distinction in the tests for sealing and unsealing documents in a Court file: "Compelling reasons" specifically set forth in order to seal Court filings v. "good cause" "when the documents are only tangentially related to the merits." Benanav, 2023 WL 8648962, at *2.
In its February Order granting Healthy Paws' motion to keep Exhibit E, the Insurers' spreadsheet, under seal, the Court ruled that "[b]ecause Exhibit E was submitted with a discovery motion that is only tangentially related to the merits, a good cause standard applies." Benanav v. Healthy Paws Pet Ins. LLC, No. 2:20-cv-00421-LK, 2023 WL 1778830, at *2 (W.D. Wash. Feb. 6, 2023). In the next sentence, the Court also said that it "finds that the Insurers have made a sufficient, particularized showing of good cause," id., which sounds confusingly like the "compelling reasons" standard.
Even if the more difficult standard of "compelling reasons" was at work here, there were compelling reasons specifically set forth in order to seal the spreadsheet filed in the Court file of this particular insurance case.
COMPELLING REASONS, SPECIFICALLY SET FORTH, TO SUPPORT KEEPING THE INSURERS' SPREADSHEET SEALED
A declaration of one Nicholas Gatt, dated August 1, 2022, was filed in support of Healthy Paws' motion to keep Exhibit E under seal. Download Benanav v. Healthy Paws Pet Ins. LLC Declaration of Nicholas Gatt dated 08.01.22 DE 96 filed 08.01.22 (W.D. Wash. Case No. 2.20.cv.00421.LK) Mr. Gatt was the COO of the Programs under which non-party Insurers issued insurance policies through the sole defendant, Healthy Paws Pet Insurance, LLC. Exhibit E was actually filed by Healthy Paws under seal. We do not learn it from the Court's Order, but Exhibit E is a spreadsheet put together by the Insurers.
The spreadsheet put together certain information regarding what the Insurers called their "base rates," meaning in simple terms the foundational or rock-bottom rates which were adjusted depending on how a range of factors were applied. The factors to be applied were presumably unique to each risk or applicant for insurance. Declaration of Nicholas Gatt, dated August 1, 2022, DE 96 at ¶ 5. Download Benanav v. Healthy Paws Pet Ins. LLC Declaration of Nicholas Gatt dated 08.01.22 DE 96 filed 08.01.22 (W.D. Wash. Case No. 2.20.cv.00421.LK)
"Because of the pricing information contained in the document, as well as the unique manner in which it is compiled," the Insurers held the document confidentially (although of course they shared it with Healthy Paws, presumably among others) and declared that the spreadsheet is "competitively sensitive." Id., ¶ 6 (emphasis added). If other pet insurers accessed this document, they might gain "a competitive advantage in pricing and marketing their policies against the Insurers' policies." Id.
This is because, Mr. Gatt testified in his declaration, "[i]f the Insurers’ competitors in the pet insurance industry were to obtain the data in the document compiled in this fashion, they could use the base rate data which they do not ordinarily have access to for the purpose of developing a strategy to market competing products against the Insurers, including by undercutting the Insurers on pricing in these markets." Id., ¶ 7 (emphasis added).
And so the Court kept the spreadsheet under seal as it had been since the date it was filed. A visit to the PACER docket entry for this spreadsheet is futile; the document is inaccessible because it is under seal.
THEN THEY CAME FOR THE BASE RATES REGARDLESS OF THE SPREADSHEET
That all happened as of February. In December, Healthy Paws and the Insurers asked the same judge to seal the base rates information that they themselves filed in other documents in the Court files. It will be recalled that in this case, the defendant also raised the filed insurance rate defense as a reason for it, the defendant, to enjoy immunity from being sued in this case.
In February, the Court had ruled that the Insurers' spreadsheet should be kept sealed because "the Insurers have made a sufficient, particularized showing of good cause to keep Exhibit E [the Insurers' spreadsheet] under seal because it contains their sensitive business information that could be used unfairly by competitors to harm their business interest." Benanav, 2023 WL 1778830, at *2.
In December, the Court's focus was seemingly no longer on harm to the business interest of the Insurers, but instead on harm to the business interest of Healthy Paws. In its December ruling, the Court ruled as to other Exhibits filed in the Court file that, regardless of the way in which those documents presented or configured the information, "Healthy Paws has made a sufficient, particularized showing to keep those documents under seal because the sensitive financial information therein could be used unfairly by competitors to harm its business interests." Benanav, 2023 WL 8648962, at *4.
The net result by December, 2023 seems to be that Healthy Paws gets to raise its defense of immunity because its rates were filed, but no-one will be allowed to figure out how those rates were calculated and why. So long as Healthy Paws' Insurers, or Healthy Paws itself depending on whether one reads the February Order or the December Order, "could" be harmed by business competitors, the information about base rates will simply not be disclosed. If no-one else will be permitted by these rulings to figure out how it came to be that the plaintiffs were charged the insurance rates that they were charged, the only evidence at trial that any party can possibly present, presumably in open Court for the world to hear and see, is apparently just that the insurance rates at issue were filed.
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TWENTY NUMBERED ISSUES, TAKE 3 FOR NOW: END DISABILITY DISCRIMINATION.
For the past week, you have received and read about opportunities for Comments on rules that have been proposed to help make Medical Diagnostic Equipment accessible to all people: The identifier for the Federal government is RIN 1190-AA78, and you can submit your Comments at the Federal eRulemaking website: https://www.regulations.gov.
The MDE rules proposed by the Civil Rights Division of the U.S. Department of Justice follow similar rules proposed earlier by the U.S. Department of Health and Human Services. Between them, these Departments will cover most if not all of the State and local governments, hospitals, physicians' groups, and other people that take Federal money, such as from the Medicare and Medicaid programs.
The Department of Justice has written twenty (20) specific invitations on Issues for Comment, within its proposed Notice of Proposed Rulemaking which you can find at Volume 89 Federal Register, pages 2183-2195 and at the Americans With Disabilities Act website: https://www.ada.gov.
Take 3 of these specific issues to help frame your thoughts for now:
public comment on whether different
scoping requirements should apply to
different types of MDE (e.g., requiring a
higher percentage of accessible exam
tables and scales than accessible x-ray
machines).
Has it been your experience that there is a need for more accessible exam tables than accessible X-ray machines? (That's what they mean by "scoping requirements": how many should be required.) Whatever your experience may be or whatever you may think about this, take their invitation to Comment and tell the Department!
regarding: The burdens that the rule’s
proposed approach to dispersion may
impose on people with disabilities e.g.,
increased wait times if accessible MDE
needs to be located and moved;
embarrassment, frustration, or
impairment of treatment that may result
if a patient must go to a different part
of a hospital or clinic to use accessible
MDE).
Again, they are looking for information about YOUR experience, not theirs. And not someone else's theoretical daydreams, but YOUR EXPERIENCE. Tell them in a Comment!
public comment on this proposal, as
well as any specific information on:
The effectiveness of programs used
by public entities in the past to ensure
that their staff is qualified[.]
Have any experience with or thoughts about whether hospital workers today can operate Medical Diagnostic Equipment so that the equipment is accessible, and so that you receive the kind of good medical examination that you deserve?
How about physicians' staff, what is your experience and what are your insights about them in this regard?
Should job postings, employment applications and job interviews match the new dynamics of operating Medical Diagnostic Equipment and, if so, how?
After employees are hired, will more and better MDE training help? More and better training on interacting with People With Disabilities?
Whatever your experience, and whatever your insights, once again: SHARE them in your Comments!
To quote the Civil Rights Division of the DOJ: "All comments must be submitted on or before February 12, 2024."
SHARE YOUR COMMENTS!
Please read the disclaimer. This blog article is offered to the public domain to make clear that leaving Comments is cool!
Posted by Dennis Wall on January 28, 2024 at 10:41 AM in Comments to Proposed Rules Changes, Disability, Discrimination, Rules and regulations | Permalink | Comments (0)
Tags: #CivilRightsDivision, #Comments, #CommentsAreCool, #DepartmentOfJustice, #DisabilityDiscrimination, #HHS, #MDE, #MedicalDiagnosticEquipment