PLAINTIFFS’ UNOPPOSED MOTION FOR PRELIMINARY ......2021/03/23 · No. 04-md-15861-CCB, 2010 WL 2342413 (D. Md. May 19, 2010) ..... 30 Case: 1:20-cv-03377 Document #: 35 Filed: 03/08/21

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION HATCHMED CORP., and § NOVARAD CORPORATION, § on behalf of themselves and others § Case No. 1:20-cv-03377 similarly situated, § § Judge Martha M. Pacold Plaintiffs, § § Magistrate Judge Jeffrey T. Gilbert v. §

§ § HEALTHCARE INFORMATION AND § MANAGEMENT SYSTEMS SOCIETY, INC., § §

Defendant. § PLAINTIFFS’ UNOPPOSED MOTION FOR PRELIMINARY APPROVAL OF CLASS

SETTLEMENT AND BRIEF IN SUPPORT THEREOF1

1 Plaintiffs have sought leave of court to file this motion in excess of the page limitations provided under the local rules.

Case: 1:20-cv-03377 Document #: 35 Filed: 03/08/21 Page 1 of 41 PageID #:276

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TABLE OF CONTENTS

Pages

I. INTRODUCTION ................................................................................................................... 1

II. SUMMARY OF THE LITIGATION AND SETTLEMENT ................................................. 2

A. Procedural History. .............................................................................................................. 2

B. Settlement Negotiations. ...................................................................................................... 3

C. Summary of Key Terms of the Proposed Settlement. ......................................................... 4

1. Relief of Class Members. ................................................................................................. 4

2. Class Notice and Settlement Administration. .................................................................. 5

3. Objection and Opt-Out Exclusionary Provisions. ............................................................ 8

4. Release Provisions............................................................................................................ 8

III. THE SETTLEMENT MEETS THE CRITERIA NECESSARY FOR THIS COURT TO GRANT PRELIMINARY APPROVAL ........................................................................................ 8

D. The Settlement is Presumptively Fair and Has No Obvious Deficiencies. ........................ 11

1. Adequacy of Representation. ......................................................................................... 11

2. Arm’s-Length Negotiation. ............................................................................................ 12

3. Relief for the Class is Adequate and Equitable. ............................................................. 14

4. Adequacy of Notice. ....................................................................................................... 16

E. The Settlement Does Not Improperly Grant Preferential Treatment. ................................ 16

F. The Settlement Does Not Grant Excessive Compensation to Attorneys. .......................... 19

G. The Settlement Benefit Falls Within the Range of Possible Approval. ............................. 22

IV. THE SETTLEMENT CLASS SHOULD BE CERTIFIED FOR SETTLEMENT PURPOSES ................................................................................................................................... 22

H. Numerosity. ........................................................................................................................ 23

I. Commonality. .................................................................................................................... 23

J. Typicality. .......................................................................................................................... 24

K. Adequacy. .......................................................................................................................... 25

L. Common Questions Predominate and the Class Action Is Superior to Other Methods of Adjudication. ............................................................................................................................. 26

V. NOTICE TO THE SETTLEMENT CLASS SHOULD BE APPROVED ........................ 29

VI. PROPOSED SCHEDULE OF EVENTS ........................................................................... 31

VII. CONCLUSION .................................................................................................................. 32


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TABLE OF AUTHORITIES

Pages Cases Am. Int’l Grp., Inc. v. ACE INA Holdings, Inc.,

Nos. 07-CV-2898, 09-CV-2026, 2012 WL 651727 (N.D. Ill. Feb. 28, 2012) .......................... 18

Amchem Prods., Inc. v. Windsor, 521 U.S. 591 (1997) ................................................................................................ 22, 25, 27, 28

Armstrong v. Bd. of Sch. Directors, 616 F.2d 305 (7th Cir. 1980) ....................................................................................................... 9

Beesley v. Int’l Paper Co., No. 3:06-cv-703-DRH-CJP, 2014 WL 375432 (S.D. Ill. Jan. 31, 2014) ...................... 18, 19, 21

Blades v. Monsanto Co., 400 F.3d 562 (8th Cir. 2005) ..................................................................................................... 27

Boeing Co. v. Van Gemert, 444 U.S. 472 (1980) .................................................................................................................. 19

Burford v. Cargill, Inc., 2012 WL 5472118 (W.D. La. Nov. 8, 2012) ............................................................................ 20

City of Greenville v. Syngenta Crop Prot., Inc., 904 F. Supp. 2d 902 (S.D. Ill. 2012) ......................................................................................... 21

City of Omaha Police & Fire Ret. Sys. v. LHC Grp., No. 6:12-1609, 2015 WL 965693 (W.D. La. Mar. 3, 2015) ..................................................... 14

Cook v. Niedert, 142 F.3d 1004 (7th Cir. 1998) ................................................................................................... 18

Cotton v. Hinton, 559 F.2d 1326 (5th Cir. 1977) ..................................................................................................... 9

D’Amato v. Deutsche Bank, 236 F.3d 78 (2d Cir. 2001) ........................................................................................................ 13

De La Fuente v. Stokely-Van Camp, Inc., 713 F.2d 225 (7th Cir. 1983) ..................................................................................................... 24

Destefano v. Zynga, Inc., No. 12- cv-04007-JSC, 2016 WL 537946 (N.D. Cal. Feb. 11, 2016) ....................................... 22

EEOC v. Hiram Walker & Sons, 768 F.2d 884 (7th Cir. 1985) ....................................................................................................... 9


iii

Florin v. Nationsbank of Georgia, N.A., 34 F.3d 560 (7th Cir. 1994) ....................................................................................................... 19

Fosbinder-Bittorf v. SSM Health Care of Wis., Inc., No. 11-CV-592-WMC, 2013 WL 5745102 (W.D. Wis. Oct. 23, 2013) ................................... 21

Gaskill v. Gordon, 160 F.3d 361 (7th Cir. 1998) ..................................................................................................... 20

George v. Kraft Foods Glob., Inc., No. 1:07-CV-1713, 2012 WL 13089487 (N.D. Ill. June 26, 2012) .......................................... 21

Gerber v. Comput. Assocs. Intern., Inc., No. 91 CV 3610, 1995 WL 228388 (E.D.N.Y. Apr. 7, 1995) .................................................. 23

Great Neck Cap. Appreciation Inv. P’ship, L.P. v. PricewaterhouseCoopers, LLP, 212 F.R.D. 400 (E.D. Wi. 2002) ................................................................................................. 9

Green v. Wolf, 406 F.2d 291 (2d Cir. 1968) ...................................................................................................... 23

Hale v. State Farm Mut. Auto. Ins. Co., No. 12-0660-DRH, 2018 WL 6606079 (S.D. Ill. Dec. 16, 2018) ....................................... 18, 20

Harzewski v. Guidant Corp., No. 05-cv-01009, Doc. 194 (S.D. Ind. Sept. 10, 2010) ............................................................. 22

In re Advanced Battery Techs., Inc. Sec. Litig., 298 F.R.D. 171 (S.D.N.Y. 2014) .............................................................................................. 30

In re AT&T Mobility Wireless Data Servs. Sales Tax Litig., 789 F. Supp. 2d 935 (N.D. Ill. 2011) ........................................................................................ 30

In re Cooper Cos. Inc. Sec. Litig., 254 F.R.D. 628 (C.D. Cal. 2009) .............................................................................................. 28

In re Dairy Farmers of Am., Inc., 80 F.Supp.3d 838 (N.D. Ill.2015) ............................................................................................. 21

In re Dell Inc. Sec. Litig., No. A–06–CA–726–SS, 2010 WL 2371834 (W.D. Tex. June 11, 2010) ......................................................................... 24

In re Drexel Burnham Lambert Grp., Inc., 960 F.2d 285 (2d Cir. 1992) ................................................................................................ 24, 25

In re Mut. Funds Inv. Litig., No. 04-md-15861-CCB, 2010 WL 2342413 (D. Md. May 19, 2010) ................................. 30


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In re Nassau County Strip Search Cases, 461 F.3d 219 (2d Cir. 2006) ...................................................................................................... 27

In re New Motor Vehicles Canadian Exp. Antitrust Litig., 270 F.R.D. 30 (D. Me. 2010) .................................................................................................... 30

In re OCA, Inc. Sec. & Deriv. Litig., No. 05-2165, 2008 WL 4681369 (E.D. La. Oct. 17, 2008) ................................................ 10, 14

In re Pool Prods. Distrib. Mkt. Antitrust Litig., MDL No. 2328, 2015 WL 4875464 (E.D. La. Aug. 13, 2015) ........................................... 10, 20

In re Provectus Biopharms., Inc. Sec. Litig., No. 3:14-cv-00338-PLR-HBG, 2016 WL 7670857 (E.D. Tenn. Apr. 7, 2016) ....................... 30

In re Stock Exch. Options Trading Antitrust Litig., No. 99 Civ.0962(RCC), 2005 WL 1635158 (S.D.N.Y. July 8, 2005) ...................................... 10

In re Synthroid Mktg. Litig. (“Synthroid I”), 264 F.3d 712 (7th Cir. 2001) ............................................................................................... 19, 20

In re Waste Mgmt. Inc. Sec. Litig., H–99–2183, 2002 WL 35644013 (S.D. Tex. May 10, 2002) ............................................. 24, 25

In re Zynga Inc. Sec. Litig., No. 12- CV-04007-JSC, 2015 WL 6471171 (N.D. Cal. Oct. 27, 2015) ................................... 29

Jenkins v. Trustmark Nat. Bank, No. 05-0283, 2014 WL 1229661 (S.D. Miss. Mar. 25, 2014) .................................................. 20

Keele v. Wexler, 149 F.3d 589 (7th Cir. 1998) ..................................................................................................... 23

Kemp v. Tower Loan of Miss., LLC, No. 3:15-CV-499-CWR-LRA, 2017 WL 6522323 (S.D. Miss. Dec. 20, 2017) ....................... 12

Kolinek v. Walgreen Co., 311 F.R.D. 483 (N.D. Ill. 2015) .................................................................................... 17, 18, 28

Longden v. Sunderman, 123 F.R.D. 547 (N.D. Tex. 1988).............................................................................................. 25

Lyons v. Marrud, Inc., No. 66 Civ. 415, 1972 WL 327 (S.D.N.Y. June 6, 1972) ......................................................... 12

Maher v. Zapata Corp., 714 F.2d 436 (5th Cir. 1983) ....................................................................................................... 9


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Mangone v. First USA Bank, 206 F.R.D. 222 (S.D. Ill. 2001) ................................................................................................. 15

Martin v. Caterpillar Inc., No. 07-CV-1009, 2010 WL 11614985 (C.D. Ill. Sept. 10, 2010) ............................................. 21

McNamara v. Bre-X Minerals Ltd., 214 F.R.D. 424 (E.D. Tex. 2002) .......................................................................................... 9, 10

Messner v. Northshore Univ. HealthSystem, 669 F.3d 802 (7th Cir. 2012) ............................................................................................... 26, 27

Milstein v. Huck, 600 F. Supp. 254 (E.D.N.Y. 1984) .............................................................................................. 9

Montgomery v. Aetna Plywood, Inc., 231 F.3d 399 (7th Cir. 2000) ..................................................................................................... 19

Mullane v. Cent. Hanover Bank & Tr. Co., 339 U.S. 306 (1950) .................................................................................................................. 29

Nguyen v. Radient Pharms. Corp., No. SACV 11–00406 DOC (MLGx), 2014 WL 1802293 (C.D. Cal. May 6, 2014) .............. 17

Robertson v. Monsanto Co., 287 F. App’x 354 (5th Cir. 2008) .............................................................................................. 28

Schulte v. Fifth Third Bank, 805 F. Supp. 2d 560 (N.D. Ill. 2011) ........................................................................................ 21

Schwartz v. TXU Corp., No. 3:02-CV-2243, 2005 WL 3148350 (N.D. Tex. Nov. 8, 2005) ........................................ 20

Shaw v. Toshiba Am. Info. Sys., Inc., 91 F. Supp. 2d 942 (E.D. Tex. 2000) ........................................................................................ 20

Shipes v. Trinity Indus., 987 F.2d 311 (5th Cir. 1993) ..................................................................................................... 24

Spano v. Boeing Co., No. 06-cv-743-NJR-DGW, 2016 WL 3791123 (S.D. Ill. Mar. 31, 2016) .......................... 18, 21

Standard Iron Works v. ArcelorMittal, No. 08 C 5214, 2014 WL 7781572 (N.D. Ill. Oct. 22, 2014) ................................................... 21

Strong v. BellSouth Telecommc’n Inc., 137 F.3d 844 (5th Cir. 1998) ..................................................................................................... 19


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Susquehanna Corp. v. Korholz, 84 F.R.D. 316 (N.D. Ill. 1979) .................................................................................................. 15

Sutton v. Bernard, 504 F.3d 688 (7th Cir. 2007) ..................................................................................................... 19

T.S. v. Twentieth Century Fox Television, 334 F.R.D. 518 (N.D. Ill. 2020) ................................................................................................ 24

Telles v. Midland Coll., No. MO:17-CV-00083-DC, 2018 WL 7352426 (W.D. Tex. Apr. 30, 2018) ............................. 9

Waste Mgmt. Holdings, Inc. v. Mowbray, 208 F.3d 288 (1st Cir. 2000) ..................................................................................................... 27

Will v. Gen. Dynamics Corp., Civ. No. 06-698-GPM, 2010 WL 4818174 (S.D. Ill. Nov. 22, 2010) ................................ 18, 21

Williams v. Rohm & Haas Pension Plan, 658 F.3d 629 (7th Cir. 2011) ..................................................................................................... 19

Young v. Cnty. of Cook, No. 06 C 552, 2017 WL 4164238 (N.D. Ill. Sept. 20, 2017) .................................................... 21

Statutes Class Action Fairness Act,

28 U.S.C. § 1715 ......................................................................................................................... 6

Other Authorities 7AA Wright & Miller, Federal Practice & Procedure § 1778 (3d ed. 2011) ............................. 9, 27

Manual for Complex Litigation (rev’d ed.) § 1.46 ......................................................................... 9

NEWBERG ON CLASS ACTIONS § 11.41 (3d ed. 1995) ......................................................... 12

NEWBERG ON CLASS ACTIONS § 1115(b) (1977) ................................................................ 24

NEWBERG ON CLASS ACTIONS § 3.10 (4th ed. 2002) .......................................................... 23

Rules FED. R. CIV. P. 23 .......................................................................................................................... 23

FED. R. CIV. P. 23(a)(1) ................................................................................................................. 23

FED. R. CIV. P. 23(b)(3) .......................................................................................................... 26, 28

FED. R. CIV. P. 23(e)(1)(B). .......................................................................................................... 11

FED. R. CIV. P. 23(e)(2) ................................................................................................................. 11


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Regulations Treasury Regulation Section 1.468B-1 ........................................................................................... 7

Treasury Regulation Section 1.468B-l(c)(1) ................................................................................... 7


I. INTRODUCTION

Plaintiffs HatchMed Corp. (“HatchMed”) and Novarad Corp. (“Novarad”) (collectively,

“Lead Plaintiffs”) on behalf of themselves and similarly situated persons and entities, and

Defendant Healthcare Information and Management Systems Society (“Defendant,” “HIMSS,” or

the “Company”), have agreed to settle this case for $2.8 million in cash as well as credits valued

at up to 60% of the total amount of Settlement Class Members’ 2020 Conference Fees, representing

several million dollars’ worth of credits.2 Use of the credits is not subject to any additional

purchase or expenditure by the Class Members. Therefore, by this unopposed motion, Plaintiffs

respectfully request that the Court enter the proposed Preliminary Approval Order: (i) granting

preliminary approval of the proposed Settlement; (ii) certifying, for settlement purposes only, the

proposed Settlement Class; (iii) approving the parties’ proposed form and method of giving notice

to the proposed Settlement Class; and (iv) setting a hearing at which the Court will consider final

approval of the Settlement and lead counsel’s motion for an award of attorneys’ fees and

reimbursement of Litigation Expenses.

The proposed Settlement is the result of extensive arm’s-length negotiations, including a

full-day mediation followed by months of continued negotiations, between fully informed counsel,

assisted by the Honorable Wayne Andersen (Ret.) of JAMS—an independent, experienced

mediator of complex class action disputes. By the time the above-captioned action ( “Action”)

settled, Lead Plaintiffs and their counsel (“Class Counsel” or “Lead Counsel”) had: (i) conducted

a detailed investigation of the facts and law; (ii) obtained discovery of information relevant to their

claims, damages, and recoverability in the case; (iii) engaged in detailed briefing of legal issues

2 Unless otherwise denoted herein, capitalized terms shall have the same meaning as ascribed to them in the attached Settlement Agreement.


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surrounding the alleged contractual violations arising out of the cancellation of the 2020 HIMSS

conference at issue in the operative amended complaint (“Complaint”) that were exchanged

between the parties at and prior to mediation in lieu of filing them; (iv) prepared and exchanged

detailed mediation statements addressing liability and damages issues with Defendant;

(v) presented at mediation; and (vi) reviewed and analyzed significant documents produced by

Defendant to confirm representations made during the mediation. In sum, Lead Plaintiffs and Lead

Counsel conducted the negotiations with a thorough understanding of the strengths and

weaknesses of the claims.

The proposed Settlement represents an excellent recovery for Settlement Class Members—

including a significant monetary recovery to the class members and the provision of millions of

dollars in credits that may be used by the class members to obtain attendance at future HIMSS

exhibitions (the consideration lost by the class members upon cancellation of the 2020 conference).

Accordingly, the Settlement easily falls “within the range of possible approval” and warrants

preliminary approval. Additionally, the proposed notice program constitutes the best practicable

notice under the circumstances. Accordingly, Lead Plaintiffs respectfully request that the Court

set a date for a settlement fairness hearing, at which time the Court will, among other things,

consider the Settlement Class’s reaction to the proposed Settlement and assess its fairness.

II. SUMMARY OF THE LITIGATION AND SETTLEMENT

A. Procedural History.

On June 8, 2020, Plaintiff HatchMed initiated this class action by filing a complaint

alleging claims for breach of contract, promissory estoppel, and unjust enrichment against

Defendant in this Court. (ECF No. 1.) HIMSS waived service on June 29, 2020, and filed a motion

for Extension of Time to Answer or Otherwise Respond to Plaintiff’s Complaint on August 25,

2020. (ECF Nos. 7, 14.) On November 2, 2020, per the parties’ request, the Court entered a joint


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protective order to facilitate the exchange of information and documents that Lead Counsel would

need to analyze in order to contemplate the propriety of any proposed settlement. (ECF Nos. 17,

20.)

On June 1, 2020, Novarad Corp. filed a lawsuit on its own behalf against HIMSS arising

out of the same nucleus of operative fact at issue in the putative class action, which was removed

to this District and Division on September 14, 2020. Novarad Corp. v. Healthcare Info. & Mgmt.

Sys. Society, Inc., No. 1:20-cv-05424 (N.D. Ill.). On October 23, 2020, Defendant filed an

unopposed motion to reassign the Novarad matter before this Court, which was granted. (ECF

Nos. 16, 19.)

On, March 3, 2021, HatchMed filed the operative complaint adding Novarad as a putative

lead plaintiff (ECF No. 29), and Novarad’s prior suit was dismissed under Federal Rule of Civil

Procedure 41. Novarad was then added to the matter filed by HatchMed in the Operative Class

Complaint. The Operative Complaint asserted claims for breach of contract, promissory estoppel,

and quantum meruit against HIMSS in connection with the cancellation of its 2020 HIMSS

conference. (Id.)

B. Settlement Negotiations.

On November 17, 2020, HIMSS and HatchMed attended a full-day mediation with Hon.

Wayne Andersen (Ret.) of JAMS. In advance of that session, counsel for Lead Plaintiffs and

Defendant submitted and exchanged detailed confidential statements and exhibits discussing

issues of liability and damages. In particular, Defendant submitted a draft motion to dismiss, and

Plaintiff responded with briefing addressing the salient points Defendant raised in its draft motion

to dismiss. Moreover, in advance of mediation, the parties exchanged documents and information

relevant to the parties, claims, and defenses, which the parties reviewed in advance of mediation.


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Although the parties made progress toward a resolution at mediation, they were unable to

reach an agreement in principle, and they informed the Court to this fact on November 24, 2020.

(ECF No. 23.) The parties, however, did agree to the further exchange of information and

documents, pursuant to a confidentiality agreement, which permitted counsel for Lead Plaintiffs

to review HIMSS’ allegedly proprietary information and documents in support of analyzing the

claims and damages in this matter.

After review, analysis, and consideration of the documents provided by HIMSS under the

obligation of confidentiality, the parties resumed discussions toward determining whether a

resolution could be reached.

On January 11, 2020, after months of negotiation, the parties were able to report to the

Court that they had reached an agreement in principle and would begin seeking to formalize the

key points of understanding in a settlement agreement. (ECF No. 26.)

C. Summary of Key Terms of the Proposed Settlement.

1. Relief of Class Members.

In full and final settlement of all claims asserted in this Action, Defendant shall transfer or

cause to be transferred into an escrow account the sum of $2,800,000.00 in cash (the “Cash Fund”),

and will also provide credits valued at up to 60% of the total amount of Settlement Class Members’

2020 Conference Fees (collectively, the “Settlement Amount”), and no additional purchase shall

be necessary for Class Members to use the credits provided. Class Members may choose their

preferred method of compensation, which is either:

a) a cash payment equal to twenty percent (20%) of the Class Member’s 2020 Conference Fees (less any sums already paid to you by HIMSS in connection with your 2020 Conference Fees), a credit equal to thirty percent (30%) of the Class Member’s 2020 Conference Fees that can be used toward fees for exhibition space, meeting space and/or sponsorships at the HIMSS Global Health Conference & Exhibition (the “HIMSS 2021 Conference”) and that will be applied to the Class Member’s account upon execution of a contract to attend the HIMSS 2021 Conference (less any sums already credited); and a


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credit equal to ten percent (10%) of the Class Member’s 2020 Conference Fees that can be used toward fees for exhibition space, meeting space and/or sponsorships at the HIMSS 2022 Conference and that will be applied to the Class Member’s account upon execution of a contract to attend the HIMSS 2022 Conference (less any sums already credited); or

b) a credit equal to fifty percent (50%) of the Class Member’s 2020 Conference Fees that can be used toward fees for exhibition space, meeting space and/or sponsorships at the HIMSS 2021 Conference and that will be applied to the Class Member’s account upon execution of a contract to attend the HIMSS 2021 Conference (less any sums already credited), and a credit equal to ten percent (10%) of the Class Member’s 2020 Conference Fees that can be used toward fees for exhibition space, meeting space and/or sponsorships at the HIMSS Global Health Conference & Exhibition scheduled to occur in 2022 (“HIMSS 2022 Conference”) and that will be applied to the Class Member’s account upon execution of a contract to attend the HIMSS 2022 Conference (less any sums already credited). This option is referred to as the “Credit-Only Option.”

2. Class Notice and Settlement Administration.

a. Notice.

No later than thirty (30) days following the entry of the Preliminary Approval Order, and

sooner if practicable, HIMSS, as the “Settlement Administrator,” will mail the Court-approved

Mailed Notice (Exhibit A-2) to all potential Settlement Class Members at their last known address

as provided to HIMSS upon registration for the HIMSS 2020 Conference, or at an alternative,

readily-ascertainable address by First-Class Mail, postage prepaid.

No later than thirty (30) days following the entry of the Preliminary Approval Order, and

sooner if practicable, the Settlement Administrator will email the Court-approved Emailed Notice

(Exhibit A-2) to all potential Settlement Class Members at the email address (if any) that they

provided to HIMSS upon registration for the HIMSS 2020 Conference or at an alternative, readily-

ascertainable email address if available.

The Settlement Administrator will forward notices that are returned by the United States

Postal Service with a forwarding address. Following receipt of any returned notices that do not

include a forwarding address, the Settlement Administrator shall as soon as practicable (itself or


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through an appropriate vendor) research such returned mail for more accurate addresses and

promptly mail copies of the applicable notice to any alternate addresses so found.

No later than fourteen (14) days after the entry of the Preliminary Approval Order, and

sooner if practicable, the Settlement Administrator will cause the Settlement Webpage located on

www.himss.org to be updated to provide information and relevant documents related to this

proposed Settlement, including but not limited to, the following: applicable deadlines; Published

Notice; Mailed Notice; Emailed Notice; orders of the Court pertaining to the Settlement; the

proposed Settlement Agreement; and contact addresses for questions. The Settlement Webpage

shall be rendered inactive thirty (30) days after the Effective Date. Class Counsel and Defense

Counsel shall agree on all information and documents to be posted on the Settlement Webpage.

As appropriate, Class Counsel and/or HIMSS shall provide an affidavit to the Court

attesting to the Notice Program and all measures undertaken to provide notice of the Settlement to

the Settlement Class no later than twenty-one (21) days before the Final Approval Hearing.

In compliance with the attorney general notification provision of the Class Action Fairness

Act, 28 U.S.C. § 1715, within ten (10) days after the motion for preliminary approval is filed, the

Settlement Administrator shall provide notice of this proposed Settlement, as well as all other

documents required by the Class Action Fairness Act, to the Attorney General of the United States,

and to the attorneys general of each state or territory in which Settlement Class Members may

reside. The Settlement Administrator will provide copies of such notifications to Class Counsel

and Defense Counsel at the time of their submission to the attorneys general.

The Notice describes in plain English the terms of the proposed Settlement, the

considerations that led Lead Counsel and Lead Plaintiffs to conclude that the Settlement is fair and

adequate, the maximum attorneys’ fees award and expense reimbursement (including


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reimbursement of costs and expenses to the Lead Plaintiffs) that may be sought, the procedure for

objecting to and opting out of the Settlement, and the date and place of the Settlement Hearing.

The Notice Program will fairly apprise Settlement Class Members of the Settlement and their

options with respect thereto and fully satisfies due process requirements.

b. Administration.

Within thirty (30) days after the entry of the Final Order and Judgment, HIMSS shall pay

the total sum of the Cash Fund into the Escrow Account to be held in escrow by the Settlement

Administrator. The Cash Fund shall be established as a Qualified Settlement Fund (“QSF”) within

the meaning of Treasury Regulation Section 1.468B-1, pursuant to the subject matter jurisdiction

of the Court under Treasury Regulation Section 1.468B-l(c)(1) and an order to be entered by the

Court establishing a QSF within the meaning of Treasury Regulation Section 1.468B-1. After the

Cash Fund has been paid into the Escrow Account, the parties and the Settlement Administrator

agree to treat the Cash Fund as a QSF within the meaning of Treasury Regulation Section 1.468B-

1.

Promptly after preliminary approval, the Settlement Administrator will issue Class Notice

and administer the Notice Program, receive and appropriately respond to all claims submitted by

a member of the Settlement Class, and otherwise administer the Settlement Agreement, subject to

review by Lead Plaintiffs and Class Counsel. The Settlement Administrator shall receive, evaluate

and either approve or disapprove Claim Forms under the requirements of the Settlement.

c. Costs of Notice of Administration.

All Notice and Administration Costs actually incurred and paid or payable, including

without limitation, the actual costs of printing and mailing the Notice, publishing the Summary

Notice, and sending the email Notices shall be borne by HIMSS.


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3. Objection and Opt-Out Exclusionary Provisions.

Any Settlement Class Member who wishes to be excluded (i.e., to “Opt-Out”) from the

Settlement Class may submit a written exclusion request. The “Opt-Out Deadline” shall mean the

date forty-five (45) days after the Notice Date by which any member of the Settlement Class who

does not wish to be included in the Settlement Class and participate in the Settlement must

complete the acts necessary to properly effect such election to opt-out. Any member of the

Settlement Class may make a Request for Exclusion by mailing or delivering such request in

writing to the Settlement Administrator as specified in the Class Notice. Any Request for

Exclusion must be postmarked or delivered not later than the Opt-Out Deadline.

Any Settlement Class Member who wishes to be heard at the Final Approval Hearing, or

who wishes for any objection to be considered, must file a written notice of objection by the

Objection Date. “Objection Date” shall mean the date forty-five (45) days after the Notice Date by

which Settlement Class Members must submit any objection to the Settlement Agreement’s terms

or provisions and submit any required statements, proof or other materials and/or argument.

4. Release Provisions.

Upon the Effective date noted in the Settlement Agreement, each Settlement Class Member

who does not timely and validly exclude itself from the Settlement Class shall be deemed to have

released, waived, and discharged Defendant from the Class Claims, including any Unknown

Claims, as set forth in the Settlement Agreement.

III. THE SETTLEMENT MEETS THE CRITERIA NECESSARY FOR THIS COURT TO GRANT PRELIMINARY APPROVAL

Rule 23(e) of the Federal Rules of Civil Procedure provides that before a class action may

be dismissed or compromised, notice of the proposed dismissal or compromise must be given in

the manner directed by the court, and judicial approval must be obtained. The issue of whether a


9

proposed settlement should be granted preliminary approval is a matter within the sound discretion

of the district court, which should be exercised in the context of public policy strongly favoring

the pretrial settlement of class action lawsuits. See, e.g., Armstrong v. Bd. of Sch. Directors, 616

F.2d 305, 313 (7th Cir. 1980) (quoting Cotton v. Hinton, 559 F.2d 1326, 1331 (5th Cir. 1977))

(“Particularly in class action suits, there is an overriding public interest in favor of settlement.”).

There is a strong initial presumption that the compromise is fair and reasonable. Maher v. Zapata

Corp., 714 F.2d 436, 455 n.31 (5th Cir. 1983) (“[N]either the district court nor the appellate court

on review, should reach ultimate conclusions on the issues of fact and law underlying the

dispute.”); Great Neck Cap. Appreciation Inv. P’ship, L.P. v. PricewaterhouseCoopers, LLP, 212

F.R.D. 400, 410 (E.D. Wi. 2002); Milstein v. Huck, 600 F. Supp. 254, 262 (E.D.N.Y. 1984); Wright

& Miller, Federal Practice & Procedure § 1797.1, Settlement, Voluntary Dismissal, or

Compromise of Class Actions—Factors Considered for Approval.

Preliminary approval of a proposed settlement is the first step in a two-step process

required before a class action may be settled. At the preliminary approval stage, the court’s task is

merely to “determine whether the proposed settlement is within the range of possible approval,”

Armstrong, 616 F.2d at 314 (citing Manual for Complex Litigation (rev’d ed.) § 1.46, at 57). At

preliminary approval, the court’s role is not to “resolv[e] the merits of the controversy or mak[e]

a precise determination of the parties’ respective legal rights.” EEOC v. Hiram Walker & Sons,

768 F.2d 884, 889 (7th Cir. 1985) (collecting cases). Accordingly, in this first step, “the Court

makes a preliminary fairness evaluation of the proposed terms of the settlement[.]” See McNamara

v. Bre-X Minerals Ltd., 214 F.R.D. 424, 426, 427 n.2 (E.D. Tex. 2002); Telles v. Midland Coll.,

No. MO:17-CV-00083-DC, 2018 WL 7352426, at *3 (W.D. Tex. Apr. 30, 2018).


10

The purpose of preliminary approval is simply to confirm that the proposed resolution “has

no obvious deficiencies [and] does not improperly grant preferential treatment to class

representatives or segments of the class.” In re Stock Exch. Options Trading Antitrust Litig., No.

99 Civ.0962(RCC), 2005 WL 1635158, at *5 (S.D.N.Y. July 8, 2005); McNamara, 214 F.R.D. at

426, 427 n.2 (E.D. Tex. 2002).

This initial assessment can be made on the basis of information already known to the Court,

which, if necessary, may be supplemented by briefs, motions, or an informal presentation from the

settling parties. Id. If the proposed settlement discloses no reason to doubt its fairness, has no

obvious deficiencies, does not improperly grant preferential treatment to class representatives or

segments of the class, does not grant excessive compensation to attorneys, and appears to fall

within the range of possible approval, the court should grant preliminary approval. In re OCA, Inc.

Sec. & Deriv. Litig., No. 05-2165, 2008 WL 4681369, at *11 (E.D. La. Oct. 17, 2008) (citations

omitted); see also McNamara, 214 F.R.D. at 430 (“[i]f the preliminary evaluation of the proposed

settlement does not disclose grounds to doubt its fairness or other obvious deficiencies . . . and

appears to fall within the range of possible approval, the court should direct that notice under Rule

23(e) be given to the class members of a formal fairness hearing…”); In re Pool Prods. Distrib.

Mkt. Antitrust Litig., MDL No. 2328, 2015 WL 4875464, at *11 (E.D. La. Aug. 13, 2015).

Lead Plaintiffs are now requesting that the Court take the first step in this process and grant

preliminary approval of the proposed Settlement. Counsel believes the proposed Settlement, which

provides an immediate and substantial benefit to the Class—$2,800,000.00 in the Cash Fund, plus

credits valued at up to 60% of the total amount of Settlement Class Members’ 2020 Conference

Fees—is an excellent result and clearly in the best interest of the Settlement Class. Given the

complexities of this Action and the substantial risks of continued litigation, Lead Counsel believes


11

the proposed Settlement represents an outstanding resolution of this litigation and eliminates the

risk that the Settlement Class might not otherwise recover if action were to continue. The

Settlement meets all of the OCA/McNamara criteria, and the Court should grant preliminary

approval.

D. The Settlement is Presumptively Fair and Has No Obvious Deficiencies.

For purposes of Preliminary Approval, this Court must assess the Settlement under Federal

Rule of Civil Produce 23(e). Under Rule 23(e)(1)(B), the Court “must direct notice in a reasonable

manner” to proposed Settlement Class Members “if giving notice is justified by the parties’

showing that the court will likely be able to (i) approve the proposal [as fair, reasonable, and

adequate] under Rule 23(e)(2); and (ii) certify the class for purposes of judgment on the proposal.”

FED. R. CIV. P. 23(e)(1)(B).

To determine whether the proposed Settlement is fair, reasonable, and adequate, Rule

23(e)(2) directs the Court to consider whether:

(A) the class representatives and class counsel have adequately represented the class; (B) the proposal was negotiated at arm’s length; (C) the relief provided for the class is adequate, taking into account: (i) the costs, risks, and delay of trial and appeal; (ii) the effectiveness of any proposed method of distributing relief to the class, including the method of processing class-member claims; (iii) the terms of any proposed award of attorney’s fees, including timing of payment; and (iv) any agreement required to be identified under Rule 23(e)(3); and (D) the proposal treats class members equitably relative to each other.

FED. R. CIV. P. 23(e)(2).

1. Adequacy of Representation.

The first factor under Rule 23(e)(2) is whether the class representatives and class counsel

adequately represented the class. Here, the proponents of the Settlement are highly experienced

in this type of litigation and are well acquainted with the legal and factual issues of the case. See

Firm Resume of Hedrick Kring, PLLC. As the court held in Lyons v. Marrud, Inc., No. 66 Civ.


12

415, 1972 WL 327, at *2 (S.D.N.Y. June 6, 1972), “[e]xperienced and competent counsel have

assessed these problems and the probability of success on the merits. They have concluded that

compromise is well-advised and necessary. The parties’ decision regarding the respective merits

of their positions has an important bearing on this case.” In Lead Counsel’s view, the Settlement

provides substantial benefits to the Settlement Class, especially considering the expense, risks,

difficulties, delays, and the uncertainties of litigation, trial, and post-trial proceedings.

In addition, the parties and their counsel were knowledgeable about the strengths and

weaknesses of the Action prior to entering into the Settlement. Lead Plaintiffs conducted a

substantial investigation prior to filing the operative Complaint, which included a thorough review

of publicly available information and interviewing several potential class members throughout the

United States. Further, Lead Plaintiffs reviewed documents provided by Defendant to test the

veracity of certain of Defendant’s allegations and contentions and had the benefit of Defendant’s

mediation presentation and draft motion to dismiss setting forth Defendant’s arguments and

defenses to Lead Plaintiffs’ theories of liability, damages, scienter, and loss causation. As a result,

Lead Plaintiffs and Lead Counsel have been provided an adequate basis for assessing the strength

of the Settlement Class’s claims and Defendant’s defenses when they entered into the Settlement.

2. Arm’s-Length Negotiation.

“There is an initial presumption of fairness when a proposed class settlement was

negotiated at arm’s length by counsel for the class.” NEWBERG ON CLASS ACTIONS § 11.41

(3d ed. 1995). Courts also give weight to the parties’ judgment that the settlement is fair and

reasonable. See Kemp v. Tower Loan of Miss., LLC, No. 3:15-CV-499-CWR-LRA, 2017 WL

6522323, at *4 (S.D. Miss. Dec. 20, 2017) (“The recommendation by Plaintiff’s counsel and the

good faith bargaining between the parties . . . militates heavily in favor of approving the


13

settlement”). Here, Class Counsel and Defense Counsel had neither met nor spoken prior to this

suit, as Class Counsel and Defense Counsel hail from and practice in different jurisdictions.

On November 17, 2020, the parties participated in an all-day mediation before a nationally

regarded mediator and former federal judge, Judge Andersen (Ret.), of JAMS. In advance of that

session, the parties exchanged detailed mediation statements and exhibits addressing liability and

damages. During the mediation, both parties made detailed, adversarial presentations about the

merits of the claims and the defenses to those claims. The negotiations were, at all times, hard-

fought and at arm’s length. In fact, Defendant presented a draft motion to dismiss to be filed in the

event that mediation failed, and in response, Lead Counsel provided detailed briefing addressing

each issue raised in Defendant’s draft motion to dismiss. Judge Andersen provided learned

guidance in connection with his review of the facts and law presented.

The parties were unable to reach a resolution at the mediation. Instead, the parties

determined to exchange mutual discovery. A motion for entry of a protective order had been sought

and entered, and the parties exchanged significant documentary evidence on this basis. Upon

review of the documentation, and over the course of months, the parties were eventually able to

reach the terms of an agreement in principle, with significant help from Judge Andersen, who

stayed involved during the entirety of the negotiations. The arm’s-length nature of these

negotiations and the involvement of an experienced mediator and federal judge support the

conclusion that the proposed Settlement is fair and was achieved free of collusion. See D’Amato

v. Deutsche Bank, 236 F.3d 78, 85 (2d Cir. 2001) (a “mediator’s involvement in . . . settlement

negotiations helps to ensure that the proceedings were free of collusion and undue pressure”).

For all these reasons, the Settlement was the product of a thorough, arm’s-length process,

and as such, enjoys a presumption of fairness. See City of Omaha Police & Fire Ret. Sys. v. LHC


14

Grp., No. 6:12-1609, 2015 WL 965693, at *6 (W.D. La. Mar. 3, 2015) (“When a settlement is

reached as the result of arms-length negotiations between competent counsel on both sides, the

settlement is presumptively valid and ‘ordinarily may be overcome only if its provisions are not

within reasonable bounds or are illegal, unconstitutional or against public policy’”). As such, the

Settlement suffers from “no obvious deficiencies.” See OCA, 2008 WL 4681369, at *11 (finding

“no obvious deficiency that would preclude a finding that the settlement is fair,” based on

settlement having been reached following “arm’s length mediation,” and counsel for the parties

having demonstrated familiarity with the factual and legal issues in the case).

3. Relief for the Class is Adequate and Equitable.

The proposed Settlement provides fair, reasonable, and adequate relief for the class.

Pursuant to the proposed Settlement, the Class Members are given a choice between two options.

First, if the Class Member chooses the Credit Only Option, the Class Member is automatically

entitled to a credit equal to fifty percent (50%) of their 2020 Conference Fees to be used towards

their future exhibitions, meeting space, and/or sponsorships at the HIMSS 2021 Conference and a

credit equal to ten percent (10%) of their 2020 Conference Fees to be used towards their future

exhibitions, meeting space, and/sponsorships at the HIMSS 2022 Conference. If the Class Member

prefers a cash payment instead, the Class Member can choose to receive a cash payment equal to

up to twenty percent (20%) of their 2020 Conference Fees, a credit equal to thirty percent (30%)

of their 2020 Conference Fees to be used towards their future exhibitions, meeting space, and/or

sponsorships at the HIMSS 2021 Conference, and a credit equal to ten percent (10%) of their 2020

Conference Fees to be used towards their future exhibitions, meeting space, and/or sponsorships

at the HIMSS 2022 Conference.

To determine if this relief is adequate, the Court should compare the benefits provided by

the proposed Settlement with the likely rewards the class would have received following a


15

successful trial of the case. See Mangone v. First USA Bank, 206 F.R.D. 222, 226 (S.D. Ill. 2001);

Susquehanna Corp. v. Korholz, 84 F.R.D. 316, 324 (N.D. Ill. 1979) (where settlement provided

benefits to plaintiff class equal to “nearly two-thirds of the estimated value of their claims,” the

court noted that “[s]uch an overall settlement, when balanced against the plaintiff’s clearly

questionable prospects for prevailing on retrial, appears to this court to be decidedly adequate and

fair and reasonable to all concerned.”).

Under either option of the proposed settlement, the Class Members will receive cash or

credit equal to sixty percent (60%) of the amount they could potentially recover at trial for their

2020 Conference Fees. This is a significant recovery, especially considering the obstacles

Defendant has raised to any recovery by the Class. Specifically, liability in this matter is heavily

contested by Defendant, whose defense to this action centers, in material part, around a force

majeure clause contained in each parties’ HIMSS 2020 Conference contract. Defendant has taken

the position that once this force majeure clause is exercised, no refunds will be available to any

Class Member. Lead Plaintiffs vigorously dispute Defendant’s position on this point of law.

Nevertheless, assuming arguendo, that the force majeure clause were to be given effect, the Class

would receive nothing—neither cash compensation, nor the ability to obtain a significant benefit

of the members’ bargain, i.e., exhibiting at a HIMSS Conference. The present proposed Settlement

provides the Class with both of these results—the creation of a $2.8 Million Cash Fund, plus credits

valued at up to 60% of the total amount of Settlement Class Members’ 2020 Conference Fees to

be used for attendance at the HIMSS Conferences for 2022 and 2023.

In light of the costs, risks and delay of trial and appeal, this compensation is adequate for

purposes of Rule 23(e)(1) and the Settlement fairly takes into the account the chance that the Class

Members would have received nothing.


16

4. Adequacy of Notice.

The parties propose a Notice Program reasonably calculated to reach nearly all members

of the proposed Settlement Class, who will be able to submit claims for their chosen option online

or by mail. Notice will be provided by mail, email, and will be published online. Specifically, no

later than thirty (30) days following the entry of the Preliminary Approval Order, and sooner if

practicable, the Settlement Administrator will mail the Court-approved Mailed Notice to all

potential Settlement Class Members at their last known address as provided to HIMSS upon

registration for the HIMSS 2020 Conference or at an alternative, readily-ascertainable address by

First-Class Mail, postage prepaid. Additionally, no later than thirty (30) days following the entry

of the Preliminary Approval Order, and sooner if practicable, the Settlement Administrator will

email the Court-approved Emailed Notice to all potential Settlement Class Members at the email

address (if any) which they provided to HIMSS upon registration for the HIMSS 2020 Conference

or at an alternative, readily-ascertainable email address if available. Published notice will be

provided on www.himss.org no later than 14 days after entry of the preliminary approval order.

Further, even if Class Members fail to respond in total, they will nevertheless receive the Credit-

Only option without the need to take any action.

E. The Settlement Does Not Improperly Grant Preferential Treatment.

The Settlement does not provide preferential treatment to Lead Plaintiffs or any other

Settlement Class Members. Indeed, the recovery for each Class Member is tied directly to what

that Class Member paid to HIMSS in connection with the 2020 Conference. In other words, the

recoveries under the Settlement are all tied pro-rata to the Class Member’s loss, an equitable

allocation formula to be sure. “[C]ourts recognize that ‘[a]n allocation formula need only have a

reasonable, rational basis, particularly if recommended by experienced and competent counsel.’”


17

Nguyen v. Radient Pharms. Corp., No. SACV 11–00406 DOC (MLGx), 2014 WL 1802293, at

*5 (C.D. Cal. May 6, 2014) (citation omitted).

Here, the Settlement provides a fair and reasonable method to allocate the Cash Fund

and Credit Option. The Cash Fund will be allocated on a pro rata basis based on the relative size

of the Settlement Class Members’ claims. Similar plans have repeatedly been approved by Courts

throughout the country. For example, in Nguyen, the court stated that a settlement is, “reasonable

if it ‘fairly treats class members by awarding a pro rata share to every [a]uthorized [c]laimant.’”

Id. (citation omitted). The Nguyen settlement provided that “[t]he settlement fund will be

distributed on a pro rata basis according to each class members’ Recognized Loss.” Id.

Like the allocation plan approved in Nguyen, the proposed Settlement here distributes the

Cash Fund and Credit Option “on a pro rata basis based on the relative size of their Recognized

Claims,” with a Settlement Class Member’s claim being tied simply to the amount that it paid

HIMSS in connection with the 2020 Conference. Here, the relief is even simpler than Nguyen,

which had to account for reasonable “interclass distinctions” among the Settlement Class

Members, an issue not relevant here. See id. Because the Settlement’s formula here, like the

allocation plan approved in Nguyen, has a “reasonable, rational basis” underlying its provisions,

the Court should find that it does not grant preferential treatment to any Settlement Class member.

Nor does the reimbursement for each of the Lead Plaintiffs’ costs and expenses, including

attorneys’ fees actually incurred by Novarad, provide any basis to conclude that the Settlement

grants preferential treatment to any Settlement Class Member. Courts have found that incentive

awards are justified when necessary to induce individuals to become named representatives.

Kolinek v. Walgreen Co., 311 F.R.D. 483, 503 (N.D. Ill. 2015). When determining whether and

how much to award as an incentive for a named plaintiff, courts consider the actions the plaintiff


18

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 pursing the litigation.

Id. Here, each Lead Plaintiff’s award is 80% of its respective claim in addition to the recovery

otherwise provided to Settlement Class Members. This award is more than justified by the

reputational risk each Lead Plaintiff took when they filed suit against HIMSS, a critical, industry-

wide voice in the healthcare information space. Being on the “wrong side” of such an important

industry player was a legitimate risk for both Lead Plaintiffs, who are each heavily invested in the

healthcare space. Moreover, Lead Plaintiffs have expended significant time, effort, and expense

pursing their claims, including conducting an investigation, reviewing documents, and working

with Lead Counsel. Novarad has incurred costs and attorneys’ fees in the amount of at least

$10,000. Additionally, the incentive awards are consistent with amounts commonly awarded by

courts within this Circuit. Cook v. Niedert, 142 F.3d 1004, 1016 (7th Cir. 1998) (upholding award

of $25,000 to class representatives); Hale v. State Farm Mut. Auto. Ins. Co., No. 12-0660-DRH,

2018 WL 6606079, at *15 (S.D. Ill. Dec. 16, 2018) (same); Spano v. Boeing Co., No. 06-cv-743-

NJR-DGW, 2016 WL 3791123, at *4 (S.D. Ill. Mar. 31, 2016) (awarding $25,000 to two

representatives and $10,000 to a third); Am. Int’l Grp., Inc. v. ACE INA Holdings, Inc., Nos. 07-

CV-2898, 09-CV-2026, 2012 WL 651727, at *16 (N.D. Ill. Feb. 28, 2012) (upholding award of

$25,000 to class representatives); Beesley v. Int’l Paper Co., No. 3:06-cv-703-DRH-CJP, 2014

WL 375432, at *4 (S.D. Ill. Jan. 31, 2014) (awarding $15,000 and $25,000); Will v. Gen. Dynamics

Corp., Civ. No. 06-698-GPM, 2010 WL 4818174, at *4 (S.D. Ill. Nov. 22, 2010) (awarding

$25,000 each to three named plaintiffs, and finding such awards are “well within the ranges that

are typically awarded in comparable cases”). As such, the Service Awards for Lead Plaintiffs do


19

not constitute a proper ground upon which to conclude that the Settlement grants preferential

treatment to any Settlement Class Member.

F. The Settlement Does Not Grant Excessive Compensation to Attorneys.

Courts assess the reasonableness of attorneys’ fees to protect class members from unfair

settlements, to minimize conflicts of interest between class members and their representatives, and

to prevent perpetuating a public perception that attorneys exploit class members for hefty fees. See

Montgomery v. Aetna Plywood, Inc., 231 F.3d 399 (7th Cir. 2000); Strong v. BellSouth

Telecommc’n Inc., 137 F.3d 844, 849–50 (5th Cir. 1998).

“[L]awyer[s] who recover[ ] a common fund . . . [are] entitled to a reasonable attorney’s

fee from the fund as a whole.” Boeing Co. v. Van Gemert, 444 U.S. 472, 478 (1980); see also

Sutton v. Bernard, 504 F.3d 688, 691 (7th Cir. 2007). “[W]hen deciding on appropriate fee levels

in common-fund cases,” like this one, courts in the Seventh Circuit “must do their best to award

counsel the market price for legal services, in light of the risk of nonpayment and the normal rate

of compensation in the market at the time.” In re Synthroid Mktg. Litig. (“Synthroid I”), 264 F.3d

712, 718 (7th Cir. 2001); accord Williams v. Rohm & Haas Pension Plan, 658 F.3d 629, 635 (7th

Cir. 2011) (“[T]he district court must try to assign fees that mimic a hypothetical ex ante bargain

between the class and its attorneys.”). Although courts in this Circuit have the discretion to use

either a percentage of the fund or lodestar methodology, Florin v. Nationsbank of Georgia, N.A.,

34 F.3d 560, 566 (7th Cir. 1994), the percentage method is employed by “the vast majority of

courts in the Seventh Circuit (like other Circuits);” cf. Beesley v. Int’l Paper Co., No. 3:06-CV-

703-DRH-CJP, 2014 WL 375432, at *2 (S.D. Ill. Jan. 31, 2014) (Herndon, J.) (“When determining

a reasonable fee, the Seventh Circuit Court of Appeals uses the percentage basis rather than a

lodestar or other basis.”).


20

In this case, Lead Counsel have agreed to request less than $1 million in fees. Were one to

measure a fee of less than $1 million against solely the Cash Fund and disregard entirely the benefit

of the substantial credits provided, a fee of less than $1 Million would represent approximately

33% of the Cash Fund, a fee percentage that courts in the Seventh Circuit and throughout the

country routinely approve. See Gaskill v. Gordon, 160 F.3d 361, 362–63 (7th Cir. 1998); Schwartz

v. TXU Corp., No. 3:02-CV-2243, 2005 WL 3148350, at *27 (N.D. Tex. Nov. 8, 2005)

(Kinkeade, J.) (citing, inter alia, Shaw v. Toshiba Am. Info. Sys., Inc., 91 F. Supp. 2d 942, 958

(E.D. Tex. 2000)); In re Pool Prods. Distrib. Mkt. Antitrust Litig., 2015 WL 4875464, at *13 (E.D.

La. 2015) (granting preliminary approval and noting that the requested attorneys’ fees are “one-

third of the $6 million total, making it roughly in line with other percentage awards that courts in

this circuit have approved.); Burford v. Cargill, Inc., 2012 WL 5472118 (W.D. La. Nov. 8, 2012)

(approving 33.33 percent); Jenkins v. Trustmark Nat. Bank, No. 05-0283, 2014 WL 1229661, at

*13 (S.D. Miss. Mar. 25, 2014) (approving 33.33 percent; “[I]t is not unusual for district courts in

the Fifth Circuit to award percentages of approximately one third”).

The Seventh Circuit will review both the fee agreed between Lead Counsel and Lead

Plaintiff, in addition to considering similar fees in the market place. Hale v. State Farm Mut. Auto.

Ins. Co., No. 12-0660-DRH, 2018 WL 6606079, at *7–9 (S.D. Ill. Dec. 16, 2018). “The first

benchmark” of the market rate “is actual agreements” between plaintiffs and counsel. In re

Synthroid Mktg. Litig. (“Synthroid I”), 264 F.3d 712, 719 (7th Cir. 2001). Here, Lead Counsel

brought this matter pursuant to a 40% contingency fee agreement. A fee of roughly 33% of the

Cash Fund amount is significantly less than the agreed-to rate for Class Counsel, and this factor

therefore favors such an award.


21

Additionally, courts look to what the market will bear, particularly as it concerns other

class cases. Courts within the Seventh Circuit, and elsewhere, regularly award percentages of

33.33% or higher to counsel in class action litigation. See, e.g., Young v. Cnty. of Cook, No. 06 C

552, 2017 WL 4164238, at *6 (N.D. Ill. Sept. 20, 2017) (awarding 33.33% of $52 million common

fund and overruling objections calling for sliding scale approach); Spano, 2016 WL 3791123, at *2

(“A one-third fee is consistent with the market rate in settlements concerning this particularly

complex area of law.”) (internal citations omitted); In re Dairy Farmers of Am., Inc., 80 F.Supp.3d

838, 845-47 (N.D. Ill.2015) (awarding one third plus expenses of $46 million common fund);

Standard Iron Works v. ArcelorMittal, No. 08 C 5214, 2014 WL 7781572, at *1 (N.D. Ill. Oct. 22,

2014) (“The Court finds that a 33% fee [of $163.9 million common fund] comports with the

prevailing market rate for legal services of similar quality in similar cases.”); Beesley, 2014 WL

375432, at *4 (awarding one third of common fund); Fosbinder-Bittorf v. SSM Health Care of

Wis., Inc., No. 11-CV-592-WMC, 2013 WL 5745102, at *1 (W.D. Wis. Oct. 23, 2013) (same);

George v. Kraft Foods Glob., Inc., No. 1:07-CV-1713, 2012 WL 13089487, at *4 (N.D. Ill. June

26, 2012) (same); City of Greenville v. Syngenta Crop Prot., Inc., 904 F. Supp. 2d 902, 908-09

(S.D. Ill. 2012) (awarding one-third of $105 million settlement plus roughly $8.5 million in costs

and noting that “[w]here the market for legal services in a class action is only for contingency fee

agreements, and there is a substantial risk of nonpayment for the attorneys, the normal rate of

compensation in the market is 33.33% of the common fund recovered.”); Schulte v. Fifth Third

Bank, 805 F. Supp. 2d 560, 597 (N.D. Ill. 2011) (awarding one third of common fund); Will v.

Gen. Dynamics Corp., No. CIV. 06-698-GPM, 2010 WL 4818174, at *4 (S.D. Ill. Nov. 22, 2010)

(same); Martin v. Caterpillar Inc., No. 07-CV-1009, 2010 WL 11614985, at *2 (C.D. Ill. Sept. 10,

2010) (“[C]ourts in the Seventh Circuit award attorney fees ‘equal to approximately one-third or


22

more of the recovery.’ The Seventh Circuit itself has specifically noted that ‘the typical contingent

fee is between 33 and 40 percent.’”); Harzewski v. Guidant Corp., No. 05-cv-01009, Doc. 194

(S.D. Ind. Sept. 10, 2010) (awarding 38% of the common fund). Based on the foregoing, even if

the Court were to disregard the value of the credits, a fee of less than $1 million would represent

approximately one-third of the Cash Fund. Therefore, a fee of less than $1 million does not grant

excessive compensation to Lead Counsel.

G. The Settlement Benefit Falls Within the Range of Possible Approval.

The Settlement Agreement provides for $2.8 million to be paid into the Cash Fund plus

credits valued at up to 60% of the total amount of Settlement Class Members’ 2020 Conference

Fees. The Settlement therefore represents an excellent result, returning to Settlement Class

Members approximately 60% of their bargained-for consideration under their contracts with

HIMSS. and Defendant’s position is that, based on the purported application of the force majeure

provision, Lead Plaintiffs could not prove any meaningful damages. Consequently, the settlement

falls well within the range of possible approval. See Destefano v. Zynga, Inc., No. 12- cv-04007-

JSC, 2016 WL 537946, at *11 (N.D. Cal. Feb. 11, 2016).

For all the forgoing reasons, Lead Plaintiffs respectfully submit that the Court should grant

preliminary approval.

IV. THE SETTLEMENT CLASS SHOULD BE CERTIFIED FOR SETTLEMENT PURPOSES

One of the Court’s functions in reviewing a proposed settlement of a class action is to

determine whether the action may be maintained as a class action under Rule 23. See Amchem

Prods., Inc. v. Windsor, 521 U.S. 591, 619–21 (1997). Rule 23(a) establishes four prerequisites to

class certification: (i) “numerosity,” (ii) “commonality,” (iii) “typicality,” and (iv) “adequacy” of

representation. See id. at 613. In addition, the Class must meet one of the three requirements of


23

Rule 23(b). FED. R. CIV. P. 23. The settlement class satisfies each of the requirements set forth

above.

H. Numerosity.

Rule 23(a)(1) requires a class be so large that joinder of all members is “impracticable.

FED. R. CIV. P. 23(a)(1). Here, the proposed Class is sufficiently numerous under Rule 23(a)(1)

because over 850 entities paid 2020 Conference Fees and have not already settled and/or released

their claims, all of which would be members of the Settlement Class. Moreover, the Class Members

are geographically diverse, hailing from across the United States. Indeed, the two named Plaintiffs

are themselves geographically diverse—one is from the State of Washington, while the other is

from Utah. This type of diversity is well suited toward class resolution, as joinder is impracticable.

Gerber v. Comput. Assocs. Intern., Inc., No. 91 CV 3610, 1995 WL 228388, at *2 (E.D.N.Y. Apr.

7, 1995) (“it is likely that [defendant’s] stockholders are not concentrated in any one geographic

location, but rather, are widely dispersed. Hence, given that there will be a variety of residences

and numerous claims, joinder would be impractical.”) (citing Green v. Wolf, 406 F.2d 291, 298

(2d Cir. 1968)). Accordingly, the numerosity requirement is, therefore, easily met.

I. Commonality.

The commonality requirement of Rule 23(a)(2) “mandates there be at least one factual or

legal issue which is common to all or substantially all of the class members.” Keele v. Wexler, 149

F.3d 589, 594 (7th Cir. 1998). “The threshold of commonality is not high; it is met when there is

at least one issue whose resolution will affect all or a significant number of the putative class

members.” Id. The test or standard for meeting the Rule 23(a)(2) prerequisite is qualitative rather

than quantitative; that is, there need be only a single issue common to all members of the class.

Therefore, this requirement is easily met in most cases. NEWBERG ON CLASS ACTIONS § 3.10

(4th ed. 2002).


24

Where, as here, resolution of the litigation would depend on the common answers to

common questions, such as whether HIMSS was permitted to cancel the HIMSS 2020 Conference

and whether HIMSS could avoid repaying 2020 Conference Fees based on an event of force

majeure, namely, the COVID-19 pandemic, the Court should conclude that “factual or legal issues

common to all the settlement class members are without doubt present in this case.” In re Dell Inc.

Sec. Litig., No. A–06–CA–726–SS, 2010 WL 2371834, at *3 (W.D. Tex. June 11, 2010). Thus,

the commonality requirement is met. In re Waste Mgmt. Inc. Sec. Litig., H–99–2183, 2002 WL

35644013, at *13 (S.D. Tex. May 10, 2002).

J. Typicality.

Rule 23(a)(3) requires that the representative’s claim be typical of those of the members of

the class. The typicality requirement is satisfied where, as here, each class member’s claim arises

from the same course of events, and each class member makes similar legal arguments to prove

the defendant’s liability. De La Fuente v. Stokely-Van Camp, Inc., 713 F.2d 225, 232 (7th Cir.

1983) (“A plaintiff’s claim is typical if it arises from the same event or practice or course of

conduct that gives rise to the claims of other class members and his or her claims are based on the

same legal theory.”); In re Drexel Burnham Lambert Grp., Inc., 960 F.2d 285, 291 (2d Cir. 1992);

T.S. v. Twentieth Century Fox Television, 334 F.R.D. 518 (N.D. Ill. 2020).

Here, Lead Plaintiffs’ claims arise from the same course of conduct by the Defendant and

are predicated on the same legal theories as the claims of all other Class Members. The typicality

requirement of Rule 23(a) is, therefore, met. See De La Fuente, 713 F.2d at 232 (quoting

NEWBERG ON CLASS ACTIONS § 1115(b) at 185 (1977)) (“The typicality requirement may

be satisfied even if there are factual distinctions between the claims of the named plaintiffs and

those of other class members.”). Here, Lead Plaintiffs’ legal and remedial theories are the same as

those of the other Class Members. See Shipes v. Trinity Indus., 987 F.2d 311, 316 (5th Cir. 1993).


25

K. Adequacy.

Rule 23(a)(4) requires that the representative parties fairly and adequately protect the

interests of the class. The adequacy requirement “serves to uncover conflicts of interest between

named parties and the class they seek to represent.” Amchem, 521 U.S. at 625. The factors relevant

to a determination of adequacy are: (1) the absence of potential conflict between the named

plaintiff and the class members; and (2) that counsel chosen by the representative parties is

qualified, experienced, and able to vigorously conduct the proposed litigation. Drexel, 960 F.2d at

291; Longden v. Sunderman, 123 F.R.D. 547, 557 (N.D. Tex. 1988).

Here, as described above, Lead Plaintiffs—the proposed Settlement Class

representatives—have claims which are typical of and coextensive with those of the Settlement

Class. Lead Plaintiffs, like all Settlement Class Members, purchased exhibition space, meeting

space, and/or sponsorships for the 2020 HIMSS Conference, and were damaged when HIMSS

cancelled the conference and purported to invoke its force majeure provision. See, e.g., Waste

Mgmt., 2002 WL 35644013, at *16. There is, therefore, no conflict between Lead Plaintiffs and

the Settlement Class they seek to represent.

Furthermore, Lead Plaintiffs have retained Hedrick Kring, PLLC to serve Lead Counsel in

this Action, who in turn have hired as local counsel Fitch, Evan, Tabin & Flannery LLP. Lead

Counsel are experienced in prosecuting class actions as class counsel and/or lead counsel, and

Fitch, Even, Tabin & Flannery LLP have significant experience before this Court and within this

Circuit in significant commercial litigation matters. (Exhibit Nos. A-5 and A-6) (Hedrick Kring,

PLLC and Fitch, Even, Tabin & Flannery LLP firm resumes, respectively); OCA, 2008 WL

4681369, at *10 (finding lead counsel and liaison counsel adequate based on their respective

resumes establishing their experience, knowledge of applicable law, record of significant

recoveries on behalf of investors, and the substantial resources they committed to the action). The


26

lawyers of Hedrick Kring, PLLC have obtained multiple eight-figure jury verdicts since 2017 in

heavily contested commercial litigation matters. They are currently serving as co-counsel in the

prosecution of an oil and gas royalty underpayment case where the class was certified over the

objection of the defendant,3 and as co-counsel in the prosecution of consumer protection class

action alleging defects in flushable wipe product,4 among a number of other class action matters.5

Therefore, because Lead Plaintiffs are adequate representatives of the Settlement Class, and its

counsel are qualified, experienced, and capable of prosecuting this Action, the requirements of

Rule 23(a)(4) are satisfied.

L. Common Questions Predominate and the Class Action Is Superior to Other Methods of Adjudication.

In addition to satisfying the Rule 23(a) requirements, Lead Plaintiffs must satisfy at least

one sub-section of Rule 23(b) in order to certify a class. Messner v. Northshore Univ.

HealthSystem, 669 F.3d 802, 811 (7th Cir. 2012). Lead Plaintiffs assert that their claims satisfy

Rule 23(b)(3)’s requirement that “the questions of law or fact common to class members

predominate over any questions affecting only individual members, and . . . a class action is

superior to other available methods for fairly and efficiently adjudicating the controversy.” FED.

R. CIV. P. 23(b)(3). Both the superiority and predominance requirements are met in this case.

While there is no mathematical or mechanical test for evaluating predominance, the

Supreme Court has explained that the “inquiry trains on the legal or factual questions that qualify

each class member's case as a genuine controversy,” with the purpose being to determine whether

a proposed class is “sufficiently cohesive to warrant adjudication by representation.” See 7AA

3 Seeligson v. Devon Energy Prod. Co., L.P., Case No. 3:16-CV-00082-K (N.D. Tex.). 4 Armstrong v. Kimberly-Clark, Corp., Civ. A. No., 3:20-cv-03150-M (N.D. Tex). 5 E.g., Wendt v. 24 Hour Fitness USA, Inc., Civ. A. No., 3:13-CV-04910-K (N.D. Tex); Isolde v. Trinity Indus., Inc., Civ. A No., 3:15-cv-02093-K (N.D. Tex).


27

Wright & Miller, Federal Practice & Procedure § 1778 (3d ed. 2011); Northshore Univ.

HealthSystem, 669 F.3d at 814 (citing Amchem, 521 U.S. at 623). The predominance requirement

is satisfied when “common questions represent a significant aspect of [a] case and . . . can be

resolved for all members of [a] class in a single adjudication.” Id. (citing Wright & Miller, supra,

§ 1778). Or, said another way, common questions can predominate if a “common nucleus of

operative facts and issues” underlies the claims brought by the proposed class. Id. at 815 (citing In

re Nassau County Strip Search Cases, 461 F.3d 219, 228 (2d Cir. 2006) and Waste Mgmt.

Holdings, Inc. v. Mowbray, 208 F.3d 288, 299 (1st Cir. 2000)). “If, to make a prima facie showing

on a given question, the members of a proposed class will need to present evidence that varies

from member to member, then it is an individual question. If the same evidence will suffice for

each member to make a prima facie showing, then it becomes a common question.” Id. (citing

Blades v. Monsanto Co., 400 F.3d 562, 566 (8th Cir. 2005)). Individual questions need not be

absent. The text of Rule 23(b)(3) itself contemplates that such individual questions will be present.

The rule requires only that those questions not predominate over the common questions affecting

the class as a whole. Id.

Here, the primary issue that predominates and likely disposes of all others is whether

HIMSS was within its legal rights to withhold repayment of Class Members 2020 Conference Fees

by invocation of the Force Majeure provision existing in the HIMSS 2020 contract. This binary,

legal question upon which all Class Members’ claims turn, is a textbook example of

“predominance.”

Further, while the amount of damages may differ among members of the Settlement Class,

liability and the proper measure of damages can be determined on a class-wide basis by applying

a simple pro-rata calculation to the class members’ fees paid. In re Cooper Cos. Inc. Sec. Litig.,


28

254 F.R.D. 628, 640 (C.D. Cal. 2009). Thus, this case illustrates the principle that the

predominance requirement is “readily met” in a case such as this. Amchem, 521 U.S. at 625.

Requiring only that a class action be “superior to other available methods for the fair and

efficient adjudication of the controversy,” Fed. R. Civ. P. 23(b)(3), the superiority analysis is “fact-

specific and will vary depending on the circumstances of any given case.” Robertson v. Monsanto

Co., 287 F. App’x 354, 361 (5th Cir. 2008). Factors relevant to a finding of superiority include:

(a) the interest of members of the class in individually controlling the prosecution or defense of separate actions;

(b) the extent and nature of any litigation concerning the controversy already

commenced by or against the members of the class;

(c) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; and

(d) the difficulties likely to be encountered in the management of a class action.

FED. R. CIV. P. 23(b)(3).

Upon consideration of these factors, the Court should conclude that a class action is

undoubtedly the best available method of litigating the case. For many, if not most, of the

Settlement Class Members, prosecution of a costly damages action on their own behalf does not

provide a realistic or efficient alternative. Most of the class members would have absolutely no

incentive to litigate their claims outside the purview of a class action, as the hurdles to bringing a

suit are relatively high. See Kolinek, 311 F.R.D. at 494. Specifically, the Class Members, hailing

from around the United States would be forced to file suit here, in Illinois, due to a choice of venue

provision in the subject contract. Such a hurdle presents a material obstacle to suit by busy

healthcare-related companies. By thus avoiding the possibility of repetitious litigation and

efficiently resolving the claims of the entire Settlement Class at once, this action satisfies the


29

superiority requirement. In re Zynga Inc. Sec. Litig., No. 12- CV-04007-JSC, 2015 WL 6471171,

at *7 (N.D. Cal. Oct. 27, 2015).

Because common questions of law and fact predominate and a class action is the superior

method of adjudication, this Action meets the requirements of Rule 23(b)(3). Solely for the

purposes of settlement, Defendant does not dispute that the Settlement Class should be certified in

accordance with Rule 23(b)(3). As such, the Court should conditionally certify the Settlement.

V. NOTICE TO THE SETTLEMENT CLASS SHOULD BE APPROVED

Lead Plaintiffs respectfully request that the Court approve the form, content, and methods

of dissemination of the proposed Notice of: (I) Class Action and Proposed Settlement;

(II) Settlement Fairness Hearing; and (III) Motion for an Award of Attorneys’ Fees and

Reimbursement of Litigation Expenses. See Proposed Preliminary Approval Order, Exhibit A-1.

The parties have submitted three proposed forms of Class Notice: a Mailed Notice (including a

Claim Form), an Emailed Notice, and a Published Notice. The parties have agreed on their content,

format, and methods of dissemination.

Rule 23(c)(2)(B) requires a certified class to be provided with “the best notice that is

practicable under the circumstances, including individual notice to all members who can be

identified through reasonable effort.” Rule 23(e) is less specific, requiring only that notice of the

proposed settlement be given “in a reasonable manner to all class members who would be bound

by the proposal.” Due process requires that the notice be “reasonably calculated, under all the

circumstances, to apprise interested parties of the pendency of the action and afford them an

opportunity to present their objections.” Mullane v. Cent. Hanover Bank & Tr. Co., 339 U.S. 306,

314 (1950).

As outlined in the proposed Preliminary Approval Order, under the terms of the Settlement

Agreement, the parties propose to send by First-Class Mail, postage prepaid, the Mailed Notice


30

(including a Claim Form) to each individual Settlement Class Member at their last known address

as provided to HIMSS upon registration for the HIMSS 2020 Conference or at an alternative,

readily-ascertainable address by First-Class Mail, postage prepaid. The parties also propose to

email the Emailed Notice to each individual Settlement Class Member at the email address (if any)

that they provided to HIMSS upon registration for the HIMSS 2020 Conference or at an alternative,

readily-ascertainable email address if available. In addition, HIMSS, as the Settlement

Administrator, will create a Settlement Webpage where the Published Notice and Claim Form will

be available.

Courts routinely find that these methods of notice are sufficient. See, e.g., In re Mut. Funds

Inv. Litig., No. 04-md-15861-CCB, 2010 WL 2342413, at *6 (D. Md. May 19, 2010) (finding

that a combination of post card notices, summary notices, and a long-form notice available online

“is the best notice practical under the circumstances and allows Class Members a full and fair

opportunity to consider the proposed Settlements.”); Christensen v. Sur La Table, Inc., No. 1:13-

cv-11357-GAO, 2014 WL 12600980, at *1 (D. Mass. 2014) (granting preliminarily approval and

approving postcard notice); In re New Motor Vehicles Canadian Exp. Antitrust Litig., 270

F.R.D. 30, 35 (D. Me. 2010). In particular, “[t]he use of a combination of a mailed post card

directing class members to a more detailed online notice has been approved by courts.” In re

Advanced Battery Techs., Inc. Sec. Litig., 298 F.R.D. 171, 183 n.3 (S.D.N.Y. 2014) (citing cases);

In re AT&T Mobility Wireless Data Servs. Sales Tax Litig., 789 F. Supp. 2d 935, 973 (N.D. Ill.

2011) (“The postcard notice was more than sufficient.”); In re Provectus Biopharms., Inc. Sec.

Litig., No. 3:14-cv-00338-PLR-HBG, 2016 WL 7670857, at *2 (E.D. Tenn. Apr. 7, 2016)

(approving an “Internet Long Form Notice,” a “Proof of Claim,” a “Summary Notice,” and a

“Postcard Notice” as “the best notice practicable under the circumstances and shall constitute due


31

and sufficient notice to all Persons entitled thereto”). Therefore, the parties submit that the

prescribed notice should be deemed sufficient.

VI. PROPOSED SCHEDULE OF EVENTS

Lead Plaintiffs respectfully propose the schedule set forth below for Settlement-related

events. The timing of events is determined by the date the Preliminary Approval Order is entered

and the date the Settlement Hearing is scheduled. If the Court agrees with the proposed schedule,

Lead Plaintiffs request that the Court schedule the Settlement Hearing for a date that is 74 calendar

days after the date of entry of the Preliminary Approval Order, or at the Court’s earliest

convenience thereafter.

Event Deadline for Compliance

Deadline for mailing the Mailed Notice and emailing the Emailed Notice to the Settlement Class (“Notice Date”)

30 days after the entry of the Preliminary Approval Order (Proposed Preliminary Approval Order, ¶ 25(c), (d))

Deadline for Class Counsel to file their applications for the Attorneys’ Fees and Expenses and Plaintiffs’ Service Awards

Notice Date (Proposed Preliminary Approval Order ¶ 43)

Deadline for publishing the Published Notice. 14 days after the entry of the Preliminary Approval Order (Proposed Preliminary Approval Order ¶ 25(f))

Filing of papers in support of final approval of the Settlement

60 calendar days after the entry of the Notice Date (Proposed Preliminary Approval Order ¶ 44)

Receipt deadline for objections and requests for exclusion from the Settlement Class

No later than 45 days after the Notice Date (Proposed Preliminary Approval Order ¶ 30)

Deadline for submitting Claim Forms 60 days after the Notice Date (Proposed Preliminary Approval Order ¶ 27)

Filing of reply to applications for the Attorneys’ Fees and Expenses and Plaintiffs’ Service Awards

14 days prior to the Final Approval hearing (Proposed Preliminary Approval Order ¶ 43)

Filing of reply to papers in support of final approval of the Settlement

7 days before the Final Approval Hearing (Proposed Preliminary Approval Order ¶ 44)

Final Approval Hearing

At the Court’s convenience, at least 104 days following the entry of the Preliminary Approval Order, or earlier if the Notice Date occurs earlier than 30 days after entry of the Preliminary Approval Order (Proposed Preliminary Approval Order ¶ 44)


32

VII. CONCLUSION

For all the foregoing reasons, Lead Plaintiffs respectfully request that the Court grant their

motion and provide all other relief, at law or in equity, to which they may be entitled.

Dated: March 5, 2021 Respectfully submitted,

/s/ Peyton J. Healey Peyton J. Healey Texas State Bar No. 24035918 (admitted) Joshua L. Hedrick State Bar No. 24061123

Jacob B. Kring Texas State Bar No. 24062831 HEDRICK KRING, PLLC 1700 Pacific Avenue, Suite 4650 Dallas, Texas 75201 (Tel.): (214) 880-9600 (Fax): (214) 481-1844 [email protected] [email protected] [email protected]

-AND-

Nicholas T. Peters (IL 6279677) [email protected] Nicole L. Little (IL 6297047) [email protected] FITCH, EVEN, TABIN & FLANNERY LLP 120 South LaSalle Street, Suite 2100 Chicago, Illinois 60603 Telephone: (312) 577-7000

LEAD COUNSEL FOR PLAINTIFFS


mailto:[email protected]





33

CERTIFICATE OF SERVICE

I, Peyton J. Healey, certify that on March 5, 2021, a true and correct copy of the foregoing

was filed through the CM/ECF system, which caused notice to be sent to all counsel of record.

/s/ Peyton J. Healey

Peyton J. Healey HEDRICK KRING, PLLC 1700 Pacific Avenue, Suite 4650 Dallas, Texas 75201 Telephone: (214) 880-9600 Facsimile: (214) 481-1844 Email: [email protected]


EXHIBIT A

Case: 1:20-cv-03377 Document #: 35-1 Filed: 03/08/21 Page 1 of 47 PageID #:317

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

HATCHMED CORP. and NOVARAD

CORPORATION, on behalf of themselves

and others similarly situated,

Plaintiffs,

v.

HEALTHCARE INFORMATION AND

MANAGEMENT SYSTEMS SOCIETY,

Defendant.

)

)

)

)

)

)

)

)

)

)

)

Case No. 1:20-cv-03377

Judge Martha M. Pacold

Magistrate Judge Jeffrey T. Gilbert

SETTLEMENT AGREEMENT AND RELEASE

Plaintiffs HatchMed Corp. and Novarad Corporation (“Plaintiffs”) hereby enter into this

settlement agreement and release (“Settlement Agreement’) in order to effect a full and final

settlement and dismissal with prejudice of all claims against Defendant Healthcare Information

and Management Systems Society (“HIMSS”) alleged in the litigation captioned HatchMed

Corp., et al. v. Healthcare Information and Management Systems Society, Case No. 1:20-cv-

03377 (N.D. Ill.) (hereinafter, “the Litigation”), on the terms set forth herein. Capitalized terms

shall otherwise have the meaning ascribed to them in Section II of this Settlement Agreement.

I. RECITALS

WHEREAS, Plaintiff HatchMed Corp. initiated the Litigation against HIMSS on or about

June 8, 2020, and Plaintiffs together filed a First Amended Complaint thereafter. Plaintiffs

allege that they and the proposed class paid fees to participate at the HIMSS 2020 Conference,

which HIMSS cancelled on or about March 5, 2020 due to the COVID-19 pandemic. Plaintiffs

allege that they and the proposed class are entitled to compensatory damages allegedly caused by

the cancellation, including but not limited to fees previously paid for floor space at the

conference, lost opportunity, travel and hotel expenses and/or costs associated with preparing for

DocuSign Envelope ID: 961E2B80-A1BB-4781-8E79-F6DCE8958B41Case: 1:20-cv-03377 Document #: 35-1 Filed: 03/08/21 Page 2 of 47 PageID #:318

2

the HIMSS 2020 Conference. Plaintiffs have asserted three claims for, respectively, breach of

contract, unjust enrichment and promissory estoppel. Plaintiffs have alleged that they are

entitled to damages regardless of whether the cancellation of the HIMSS 2020 Conference was

justified under the contracts between Plaintiffs and HIMSS. Plaintiffs have also alleged that the

cancellation was wrongful, and that the cancellation was not in fact justified under the contracts

between Plaintiffs and HIMSS, in equity and/or at common law.

WHEREAS, Plaintiffs assert their claims on their own behalf as well as on behalf of

“[a]ll individuals or entities that at any time prior to preliminary approval paid fees to HIMSS for

exhibition space, meeting space and/or sponsorships at the HIMSS tradeshow which was planned

to take place on March 9 – 13 in Orlando, Florida and that have not already settled and released

their claims.” Am. Compl. (Dkt. _) ¶ 21.

WHEREAS, HIMSS denies all of Plaintiffs’ allegations in the Litigation and specifically

denies that it has engaged in any wrongdoing whatsoever, that it breached any agreements with

Plaintiffs or the proposed class, that Plaintiffs and the proposed class are entitled to any relief

whatsoever and that the action can properly or feasibly be maintained as a class action on a

contested basis.

WHEREAS, HIMSS disputes all of Plaintiffs’ allegations and claims and was and is fully

prepared to file a motion to dismiss this action, including pursuant to the terms of the contracts to

which Plaintiffs and HIMSS agreed. HIMSS maintains, among other things, that the force

majeure clause in the contracts between Plaintiffs and HIMSS plainly provides that the fees that

Plaintiffs paid to HIMSS are non-refundable in the event of a cancellation by HIMSS and that

HIMSS is therefore not obligated to issue any refunds or pay any monies under any

circumstances. HIMSS further maintains that the cancellation of the HIMSS 2020 Conference


3

was justified under the contract, in equity and at common law and that HIMSS is thus not liable

for any damages under contract, in equity or at common law.

WHEREAS, prior to the deadline for the filing of HIMSS’ motion to dismiss, the parties

to the Litigation began to discuss the possibility of settlement, and on November 17, 2020, the

parties to the Litigation engaged in a day-long mediation with the assistance of the Hon. Wayne

R. Andersen (Ret.) of JAMS. The parties to the Litigation did not reach the terms of a settlement

on November 17, 2020 and instead continued to conduct negotiations through Judge Andersen in

November and December of 2020, ultimately resulting in a preliminary agreement on the

material terms of a class settlement of this action, subject to negotiating the remaining terms and

negotiating a definitive written settlement agreement.

WHEREAS, Plaintiffs’ Counsel have made a thorough investigation of the facts and

circumstances surrounding the allegations asserted in the Litigation and have engaged in

investigation and discovery of the claims asserted therein.

WHEREAS, Plaintiffs and their counsel have examined the benefits to be obtained under

the terms of this Settlement Agreement, have considered the risks associated with the continued

prosecution of the Litigation and believe that it is in the best interests of the proposed class that

the Litigation be resolved on the terms and conditions set forth in this Settlement Agreement.

Plaintiffs’ counsel reached that conclusion after considering the factual and legal issues

presented in the Litigation, the risks associated with the otherwise forthcoming motion of

HIMSS to dismiss the action, the substantial benefits that members of the proposed class will

receive as a result of the Settlement Agreement, the risks and uncertainties of continued

litigation, the risks and uncertainties associated with the ongoing COVID-19 pandemic, the


4

expense that would be necessary to prosecute the Litigation through trial and any appeals that

might be taken and the likelihood of success at trial.

WHEREAS, HIMSS denies each and every allegation of liability, wrongdoing and

damages and further denies that the Litigation may be maintained as a class action except for

settlement purposes. Nonetheless, without admitting or conceding any liability, damages or any

wrongdoing whatsoever and without conceding the appropriateness of class treatment for claims

asserted in any future complaint, HIMSS has agreed to settle the Litigation on the terms and

conditions set forth in this Settlement Agreement solely to avoid the substantial expense,

inconvenience, burden and disruption of continued litigation.

WHEREAS, the parties agree and understand that neither this Settlement Agreement nor

the Settlement it represents shall be construed or admissible as an admission of any kind by

HIMSS of any wrongdoing whatsoever, including an admission of a breach of contract, a

violation of any statute or law or of liability on the claims or allegations in the Litigation.

WHEREAS, the parties agree and understand that neither this Settlement Agreement nor

the Settlement it represents shall be construed or admissible as an admission of any kind by

HIMSS that Plaintiffs’ claims in this Litigation or any other similar claims in other proceedings

are or would be suitable for class treatment if the Litigation proceeded through litigation and/or

trial.

WHEREAS, the parties desire to compromise and settle all issues and claims that have

been brought or could have been brought against the Released Parties arising out of or relating to

allegations that HIMSS engaged in wrongful conduct, caused or is responsible for any damages

or otherwise failed to provide adequate relief after the HIMSS 2020 Conference was cancelled as

well as all of the claims that were or could have been asserted in the Litigation.


5

NOW, THEREFORE, in consideration of the mutual covenants and agreements herein,

the parties hereto agree as follows, subject to preliminary and final approval from the Court:

II. DEFINITIONS

As used in this Settlement Agreement, the following terms shall have the meaning set

forth below. Where appropriate, terms used in the singular shall be deemed to include the plural

and vice versa.

1. Attorneys’ Fees and Expenses - “Attorneys’ Fees and Expenses” means

the total award of attorneys’ fees, costs and expenses sought by Class Counsel and allowed by

the Court.

2. CAFA Notices - “CAFA Notices” shall mean the notice of this Settlement

to be served upon State and Federal regulatory authorities as required by the Class Action

Fairness Act of 2005, 28 U.S.C. § 1715.

3. Cash Fund - “Cash Fund” means the cash portion of the common fund in

the amount of two million eight hundred thousand dollars ($2,800,000) described in Section

IV(A), which will be used to pay Attorneys’ Fees and Expenses, any Service Awards ordered by

the Court, and all cash payments to be paid to members of the Settlement Class under this

Agreement. The Cash Fund shall represent the full amount of HIMSS’ monetary obligations

under this Settlement, and in no event shall HIMSS be required to pay or contribute toward the

Settlement more than the amount of the Cash Fund.

4. Claim Deadline - “Claim Deadline” shall mean the date sixty (60) days

after the Notice Date by which a member of the Settlement Class eligible for the benefits

described in Section IV(B) shall complete, sign and submit a Claim Form.

5. Claim Form - “Claim Form” shall mean the form that Settlement Class

Members must complete, sign and submit on or before the Claim Deadline to be eligible for the


6

benefits described in Section IV(B) below, which form shall be substantially in the form of

Exhibit A-3 hereto.

6. Class Counsel - “Class Counsel” shall mean Peyton J. Healey, Esq. of

Hedrick Kring, PLLC.

7. Class Notice - “Class Notice” shall mean the Court-approved form of

notice in substantially the same form as Exhibits A-2 and A-4, which will notify the Settlement

Class of preliminary approval of the Settlement and the scheduling of the Final Approval

Hearing, among other things.

8. 2020 Conference Fees - “2020 Conference Fees” shall mean fees paid by a

Settlement Class Member to HIMSS for exhibition space, meeting space and/or sponsorships at

the HIMSS 2020 Conference.

9. Court - “Court” shall mean The United States District Court for The

Northern District of Illinois, Eastern Division.

10. Days - “Days” shall mean calendar days, except that when computing any

period of time prescribed or allowed by this Settlement Agreement, the day of the act, event, or

default from which the designated period of time begins to run shall not be included. Further,

when computing any period of time prescribed or allowed by this Settlement Agreement, the last

day of the period so computed shall be included, unless it is a Saturday, a Sunday or a Federal or

State of Illinois legal holiday, in which event the period runs until the end of the next day that is

not a Saturday, Sunday or Federal or State of Illinois legal holiday

11. Defense Counsel - “Defense Counsel” shall mean Latham & Watkins

LLP.


7

12. Effective Date - “Effective Date” shall mean the date defined in Section

XIII below.

13. Emailed Notice - “Emailed Notice” shall mean the notice of the

Settlement provided to the Settlement Class by email, which shall be without material alteration

from Exhibit A-2.

14. Escrow Account - “Escrow Account” shall mean the bank account

established to hold the Cash Fund as described in Section V(A).

15. Final - “Final” shall have the meaning defined in Section XIII(B) below.

16. Final Approval Hearing - “Final Approval Hearing” shall mean the

hearing at which the Court will consider and finally decide whether to enter the Final Order and

Judgment.

17. Final Order and Judgment - “Final Order and Judgment” shall mean that

Court order that permanently certifies the class described in Section III(A) below, approves this

Settlement Agreement, approves payment of Attorneys’ Fees and Expenses, and makes such

other final rulings as are contemplated by this Settlement Agreement, as defined in Section XI

below.

18. HIMSS - “HIMSS” shall mean Healthcare Information Management

Systems Society.

19. HIMSS 2020 Conference - “HIMSS 2020 Conference” shall mean

HIMSS’ Global Health Conference & Exhibition for 2020, scheduled to take place from March

9, 2020 through March 13, 2020 in Orlando, Florida, and cancelled on or about March 5, 2020.


HIMSS’ Global Health Conference & Exhibition scheduled to occur in 2021.


8


HIMSS’ Global Health Conference & Exhibition scheduled to occur in 2022.


HIMSS’ Global Health Conference & Exhibition to occur in 2023.

23. Litigation – As noted above, “Litigation” shall mean HatchMed Corp., et

al. v. Healthcare Information and Management Systems Society, Case No. 1:20-cv-03377 (N.D.

Ill.), which is pending before the Honorable Martha M. Pacold in the United States District Court

for the Northern District of Illinois, Eastern Division.

24. Mailed Notice - “Mailed Notice” shall mean the notice of the Settlement

provided to the Settlement Class by First-Class Mail, postage pre-paid, which shall be without

material alteration from Exhibit A-2.

25. Notice Program - “Notice Program” shall mean the program for

disseminating the Class Notice to the Settlement Class in accordance with the terms set forth in

Section VII below.

26. Notice Date - “Notice Date” shall mean the date upon which Mailed

Notice is mailed to the Settlement Class in accordance with the terms set forth in Section VII

below. If Mailed Notice is mailed to the Settlement Class over a period of days, the Notice Date

shall be the date on which the last set of Mailed Notices are mailed.

27. Objection Date - “Objection Date” shall mean the date forty-five (45) days

after the Notice Date by which Settlement Class Members must submit any objection to the

Settlement Agreement’s terms or provisions and submit any required statements, proof or other

materials and/or argument.


9

28. Opt Out - “Opt Out” shall mean a member of the Settlement Class that

properly and timely submits a Request for Exclusion from the Settlement Class as set forth in

Section VIII below.

29. Opt-Out Deadline - “Opt-Out Deadline” shall mean the date forty-five

(45) days after the Notice Date by which any member of the Settlement Class that does not wish

to be included in the Settlement Class and participate in the Settlement must complete the acts

necessary to properly effect such election to opt out.

30. Opt-Out List - “Opt-Out List” shall mean a written list prepared by the

Settlement Administrator of the names of all members of the Settlement Class that submit timely

Requests for Exclusion.

31. Parties - “Parties” shall mean Plaintiffs, Settlement Class Members and

Class Counsel together with HIMSS. Plaintiffs, Settlement Class Members and Class Counsel

shall be referred to as one Party, with HIMSS being the other Party.

32. Person - “Person” shall mean an individual, corporation, partnership,

limited partnership, limited liability company, association, member, joint stock company, estate,

legal representative, trust, unincorporated association, any business or legal entity and such

individual’s or entity’s spouse, heirs, predecessors, successors, agents, representatives, assignees

and counsel.

33. Plaintiffs - “Plaintiffs” shall mean HatchMed Corp. and Novarad

Corporation.

34. Preliminary Approval Date - “Preliminary Approval Date” means the date

the Preliminary Approval Order has been executed and entered by the Court and received by

counsel for the Parties.


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35. Preliminary Approval Order - “Preliminary Approval Order” shall mean

the order of the Court preliminarily approving this Settlement Agreement and conditionally

certifying a provisional Settlement Class, in substantially the same form as Exhibit A-1.

36. Published Notice - “Published Notice” shall mean the notice published on

the Settlement Webpage, which shall be without material alteration from Exhibit A-4.

37. Release - “Release” means the release and discharge, as of the Effective

Date, by the Releasing Parties of the Released Parties of and from all Released Claims.

38. Released Claims - “Released Claims” means any and all claims, actions,

causes of action, rights, demands, suits, debts, damages, costs, fees (including attorneys’ fees),

sums of money, liens, contracts, warranties, agreements, offsets or liabilities, including but not

limited to tort claims, equitable claims, claims for breach of contract, breach of implied contract,

breach of warranty, breach of the duty of good faith and fair dealing, unjust enrichment,

promissory estoppel, breach of statutory duties, actual or constructive fraud, misrepresentation,

or omission, fraudulent inducement, statutory or consumer misrepresentation, omission or fraud,

unfair business or trade practices, restitution, rescission, compensatory and punitive damages,

statutory damages, injunctive or declaratory relief, attorneys’ fees, interests, costs, penalties and

any other claims, whether known or unknown, alleged or not alleged in the Litigation, suspected

or unsuspected, contingent or matured, under federal, state or local law, rules or regulations, that

the Releasing Parties had, now has or may in the future have with respect to any conduct, acts,

omissions, facts, matters, transactions or oral or written statements or occurrences on or prior to

the Preliminary Approval Date arising from or relating to the HIMSS 2020 Conference, the

cancellation of the HIMSS 2020 Conference or any contract or agreement related to the HIMSS

2020 Conference, including, without limitation, causes of action for breach of contract, breach of


11

implied contract, breach of the duty of good faith and fair dealing, unjust enrichment, promissory

estoppel, misrepresentation, omission, fraud, breach of express or implied warranty and similar

claims under the law of each state, territory and the District of Columbia, including but not

limited to any and all consumer protection statutes, rules or regulations.

39. Released Parties - “Released Parties” means HIMSS and its affiliates and

each of its past, present and future predecessors, successors, assigns, parents, subsidiaries,

affiliates, joint venturers, partnerships, limited liability companies, corporations, unincorporated

entities, divisions, groups, directors, officers, shareholders, members, grand-members,

employees, partners, agents, owners, distributors, administrators, attorneys and legal

representatives as well as each of their insurers, co-insurers, reinsurers and insurance brokers,

and any other person or entity acting by, through, under or in concert with any of them, whether

in the past, present or future.

40. Releasing Parties - “Releasing Parties” means Plaintiffs, on behalf of

themselves and all Settlement Class Members, Class Counsel, each of the Settlement Class

Members and the respective heirs, administrators, representatives, attorneys, agents, officers,

directors, employees, parents, subsidiaries, administrators, partners, predecessors, successors,

assigns, subrogees, insurers, co-insurers, reinsurers and insurance brokers of each of Plaintiffs,

Class Counsel and the Settlement Class Members and all other legal or natural persons who may

claim by, through or under them who have not excluded themselves from the Settlement Class.

41. Request for Exclusion - “Request for Exclusion” shall mean any request

by any member of the Settlement Class for exclusion from the Settlement Class in compliance

with Section VIII below.


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42. Service Awards - “Service Awards” means compensation for Plaintiffs, as

defined in Section X, Paragraph B below, for the time and effort undertaken in this Litigation, as

well as for actual out-of-pocket costs and attorney’s fees incurred by Plaintiff(s), which shall be

subject to Court approval.

43. Settlement - “Settlement” shall mean the agreement by Plaintiffs and

HIMSS to resolve the Litigation, the terms of which have been memorialized in this Settlement

Agreement.

44. Settlement Administrator - “Settlement Administrator” shall mean HIMSS

and any employees, agents, representatives or independent contractors working under HIMSS’

direction to administer specific components of the Settlement.

45. Settlement Agreement - “Settlement Agreement” shall mean this

Settlement Agreement, including any amendment hereto pursuant to Section XI, Paragraph

A(15) below, and all the exhibits attached hereto.

46. Settlement Class - “Settlement Class” shall mean all Persons that at any

time prior to preliminary approval paid fees to HIMSS for exhibition space, meeting space

and/or sponsorships at the HIMSS 2020 Conference and that have not already settled and

released their claims, subject to the exclusions stated in Section III, Paragraph A(i) - A(iii)

below.

47. Settlement Class Member - “Settlement Class Members” shall mean all

Persons in the Settlement Class that do not exclude themselves pursuant to Section VIII below.

48. Settlement Webpage - “Settlement Webpage” means a webpage on the

website of the Settlement Administrator, www.himss.org, which will be a dedicated webpage

created and maintained by the Settlement Administrator and will contain relevant documents and


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information about the Settlement including this Settlement Agreement, the Published Notice and

other documents that Class Counsel and Defense Counsel agree upon.

49. The plural of any defined term includes the singular, and the singular of

any defined term includes the plural, as the case may be.

III. PRELIMINARY CERTIFICATION OF SETTLEMENT CLASS

A. The Parties stipulate to certification, for settlement purposes only, of the

Settlement Class defined as follows:

All Persons that at any time prior to preliminary approval paid fees to HIMSS for

exhibition space, meeting space and/or sponsorships at the HIMSS 2020

Conference and that have not already settled and released their claims.

Specifically excluded are the following Persons:

(i) HIMSS and its subsidiaries and affiliates, employees, officers,

directors, agents and representatives and their family members;

(ii) Class Counsel;

(iii) The judges who have presided over the Litigation; and

(iv) All Persons that have timely elected to become Opt Outs from the

Settlement Class in accordance with the Court’s orders.

B. After execution of this Settlement Agreement, Plaintiffs and Class Counsel shall

promptly move the Court for entry of a Preliminary Approval Order in substantially the same

form as Exhibit A-1, which by its terms shall:

1. Preliminarily approve the terms of the Settlement Agreement;

2. Preliminarily certify the Settlement Class for purposes of this Settlement

Agreement only;

3. Find that the proposed Settlement is sufficiently fair, reasonable and

adequate to warrant providing notice to the Settlement Class;

4. Approve the contents of the Class Notice and the Notice Program;


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5. Find that the Notice Program (a) is reasonable and constitutes due,

adequate and sufficient notice to all Persons entitled to receive notice, (b) is reasonably

calculated, under the circumstances, to apprise the Settlement Class of the pendency of the

Litigation and of their right to object to or to exclude themselves from the Settlement and

(c) meets all applicable requirements of applicable law;

6. Require each member of the Settlement Class that wishes to exclude

himself or herself from the Settlement Class to submit an appropriate, timely Request for

Exclusion in accordance with the procedure outlined in Section VIII below;

7. Preliminarily enjoin all members of the Settlement Class unless and until

they have timely excluded themselves from the Settlement Class from (a) filing, commencing,

prosecuting, intervening in or participating as plaintiff, claimant, participant or class member in

any other lawsuit or administrative, regulatory, arbitration or other proceeding in any jurisdiction

based on, relating to or arising out of the claims and causes of action or the facts and

circumstances giving rise to the Litigation or the Released Claims; (b) filing, commencing,

participating in or prosecuting a lawsuit or administrative, regulatory, arbitration or other

proceeding as a class action on behalf of any member of the Settlement Class that has not timely

excluded himself or herself (including by seeking to amend a pending complaint to include class

allegations or seeking class certification in a pending action), based on, relating to or arising out

of the claims and causes of action or the facts and circumstances giving rise to the Litigation or

the Released Claims; and (c) attempting to effect Opt Outs of a class of individuals in this

lawsuit or any other lawsuit or administrative, regulatory, arbitration or other proceeding based

on, relating to or arising out of the claims and causes of action or the facts and circumstances

giving rise to the Litigation or the Released Claims. This Settlement Agreement is not intended


15

to prevent Settlement Class Members from participating in any action or investigation initiated

by a state or federal agency;

8. Order that any member of the Settlement Class that does not submit a

timely, written Request for Exclusion from the Settlement Class (i.e., becomes an Opt Out) will

be bound by all proceedings, orders and judgments in the Litigation, even if such Settlement

Class Member has previously initiated or subsequently initiates individual litigation or other

proceedings encompassed by the Release;

9. Require each Settlement Class Member that is not an Opt Out and that

wishes to object to the fairness, reasonableness or adequacy of this Settlement Agreement or any

part of the Settlement to file with the Court and serve on Class Counsel a statement of the

objection in accordance with the procedures outlined in Section IX below;

10. Require that any response to an objection shall be filed with the Court no

later than fourteen (14) days prior to the Final Approval Hearing;

11. Specify that any Settlement Class Member that does not file a timely,

written objection to the Settlement or that fails to otherwise comply with the requirements of

Section IX below shall be foreclosed from seeking any adjudication or review of this Settlement

by appeal or otherwise;

12. Require that any attorney hired by a Settlement Class Member will be at

the Settlement Class Member’s expense for the purpose of objecting to this Settlement

Agreement or to any portion of the Settlement;

13. Require that any attorney hired by a Settlement Class Member for the

purpose of objecting to the Settlement and that intends to make an appearance at the Final

Approval Hearing to provide to Class Counsel and Defense Counsel and to file with the Clerk of


16

the Court a notice of intention to appear no later than forty-five (45) days after the Notice Date or

as the Court may otherwise direct;

14. Require any Settlement Class Member that files and serves a written

objection and that intends to make an appearance at the Final Approval Hearing to provide to

Class Counsel and Defense Counsel and to file with the Clerk of the Court a notice of intention

to appear no later than forty-five (45) days after the Notice Date or as the Court otherwise may

direct;

15. Direct that Class Counsel shall file their applications for the Attorneys’

Fees and Expenses and Plaintiffs’ Service Awards by the Notice Date. If any reply papers are

necessary, they shall be filed no later than fourteen (14) days prior to the Final Approval hearing.

16. Direct that Class Counsel shall file any papers in support of final approval

of the Settlement no later than sixty (60) days from the Notice Date. If any reply papers are

necessary, they shall be filed no later than seven (7) days prior to the Final Approval Hearing.

17. Schedule a Final Approval Hearing to review comments regarding the

proposed Settlement and to consider the fairness, reasonableness and adequacy of the proposed

Settlement and the application for an award of attorneys’ fees and reimbursement of expenses,

and to consider whether the Court should issue a Final Order and Judgment approving the

Settlement, granting Class Counsel’s application for fees and expenses, granting the incentive

awards application by Plaintiffs and dismissing the claims against HIMSS with prejudice; and

18. Contain any additional provisions agreeable to the Parties that might be

necessary or advisable to implement the terms of this Settlement Agreement and the proposed

Settlement.


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IV. SETTLEMENT COMPENSATION AND BENEFITS

A. Cash Fund. In consideration of the Release and the dismissal of the Litigation

with prejudice and subject to the limits specified herein, HIMSS agrees to make an all-inclusive

common fund payment of two million eight hundred thousand dollars ($2,800,000) to the Cash

Fund. HIMSS shall cause two million eight hundred thousand dollars ($2,800,000) to be paid

into the Escrow Account within thirty (30) days of the Final Order and Judgment. This amount

shall represent the entirety of HIMSS’ monetary obligation under this Settlement Agreement,

and no further monetary obligation shall be imposed on HIMSS or otherwise required.

B. Compensation and Benefits to Settlement Class Members. Settlement Class

Members are entitled to choose either of the following, subject to Paragraph E:

1. Cash/Credit Option. Settlement Class Members may submit a claim for a

cash payment equal to twenty percent (20%) of their 2020 Conference Fees (less any sums

already paid by HIMSS to a particular Settlement Class Member in connection with its 2020

Conference Fees), a credit equal to thirty percent (30%) of their 2020 Conference Fees that can

be used toward fees for exhibition space, meeting space and/or sponsorships at the HIMSS 2021

Conference and that will be applied to the account of the Settlement Class Member upon

execution of a contract to attend the HIMSS 2021 Conference (less any sums already credited)

and a credit equal to ten percent (10%) of their 2020 Conference Fees that can be used toward

fees for exhibition space, meeting space and/or sponsorships at the HIMSS 2022 Conference and

that will be applied to the account of the Settlement Class Member upon execution of a contract

to attend the HIMSS 2022 Conference (less any sums already credited). All cash payments shall

be paid exclusively from the Cash Fund. In order to be eligible to receive the benefits of this

Section IV(B)(1), a member of the Settlement Class must submit a completed and signed Claim

Form by the Claim Deadline; or


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2. Credit-Only Option. Settlement Class Members may instead submit a

claim for a credit equal to fifty percent (50%) of their 2020 Conference Fees that can be used

toward fees for exhibition space, meeting space and/or sponsorships at the HIMSS 2021

Conference and that will be applied to the account of the Settlement Class Member upon

execution of a contract to attend the HIMSS 2021 Conference (less any sums already credited)

and a credit equal to ten percent (10%) of their 2020 Conference Fees that can be used toward

fees for exhibition space, meeting space and/or sponsorships at the HIMSS 2022 Conference and

that will be applied to the account of the Settlement Class Member upon execution of a contract

to attend the HIMSS 2022 Conference (less any sums already credited).

3. Subject to Section IV(E), the credits to which a Settlement Class Member

may be entitled under this Settlement may be used only toward exhibition space, meeting space

and/or sponsorships at the HIMSS 2021 Conference or HIMSS 2022 Conference, as specified

herein and as subject to the terms herein, and may not be used toward the cost of or fees

associated with any other HIMSS conference, service or programming.

4. Under no circumstances are Settlement Class Members entitled to receive

an actual cash payment on any portion of any of the credits to which they are entitled under this

Settlement.

C. Deadline to Submit Claims Pursuant To Section IV(B). A Settlement Class

Member must affirmatively submit a claim to receive the option set forth in Section IV(B)(1)

that includes the twenty percent (20%) cash component. Any Settlement Class Member that

does not affirmatively submit a claim will automatically be entitled to the option in Section

IV(B)(2) only. The deadline to submit a claim pursuant to Section IV(B)(1) shall be the Claim


19

Deadline. The Settlement Administrator shall not review or pay any claims for monetary

compensation submitted by a member of the Settlement Class after the Claim Deadline.

D. Allocation of Cash Fund In The Event Of Oversubscription Or Undersubscription.

If the Cash Fund is oversubscribed (i.e., more claims for compensation are approved than dollars

available in the Cash Fund), then claims will be reduced pro rata, meaning that each cash award

will be reduced by an equal percentage until the Cash Fund is no longer oversubscribed. If the

Cash Fund is undersubscribed (i.e., fewer claims for compensation are approved than dollars or

value available in the Cash Fund), then any remaining dollars within the Cash Fund shall be

reallocated pro rata to previously-approved, valid claims against that Cash Fund.

E. Notwithstanding the foregoing, if the Effective Date does not occur until after the

first day of the HIMSS 2021 Conference, and HIMSS and the Settlement Class Member have not

yet separately agreed that the credit provided under Section IV, Paragraph B in connection with

the HIMSS 2020 Conference shall remain available for use toward exhibition space, meeting

space and/or sponsorships at the HIMSS 2021 Conference (less any sums already credited), then

the credits provided under Section IV, Paragraph B for use toward exhibition space, meeting

space and/or sponsorships at the HIMSS 2021 Conference shall instead be available for use

toward exhibition space, meeting space and/or sponsorships at the HIMSS 2022 Conference and

will be applied to the account of the Settlement Class Member upon execution of a contract to

attend the HIMSS 2022 Conference (less any sums already credited), and the credits provided

under Section IV, Paragraph B for use toward exhibition space, meeting space and/or

sponsorships at the HIMSS 2022 Conference shall instead be available for use toward exhibition

space, meeting space and/or sponsorships at the HIMSS 2023 Conference and will be applied to


20

the account of the Settlement Class Member upon execution of a contract to attend the HIMSS

2023 Conference (less any sums already credited).

V. ADMINISTRATION OF THE SETTLEMENT

A. Establishment And Administration Of The Cash Fund As A Qualified Settlement

Fund. Within thirty (30) days after the entry of the Final Order and Judgment, HIMSS shall pay

the total sum of the Cash Fund into the Escrow Account to be held in escrow by the Settlement

Administrator. The Cash Fund shall be established as a Qualified Settlement Fund (“QSF”)

within the meaning of Treasury Regulation Section 1.468B-1, pursuant to the subject matter

jurisdiction of the Court under Treasury Regulation Section 1.468B-l(c)(1) and an order to be

entered by the Court establishing a QSF within the meaning of Treasury Regulation Section

1.468B-1. After the Cash Fund has been paid into the Escrow Account, the Parties and the

Settlement Administrator agree to treat the Cash Fund as a QSF within the meaning of Treasury

Regulation Section 1.468B-1.

B. Cash Fund, Distributions And Expenses. No portion of the Cash Fund shall be

made available to the Settlement Class until thirty (30) days after the Effective date and as

specifically set forth in this Settlement Agreement. Until such time as the Cash Fund is

distributed, the Settlement Class shall not possess any rights to demand or receive any portion of

the monies or the escrowed monies or to mortgage, pledge or encumber the same in any manner.

To the extent possible, the terms of the Settlement Agreement shall be construed so as to prevent

Plaintiffs from being in constructive receipt, as determined under federal income tax principles,

of the Cash Fund. If this Settlement Agreement does not for any reason become Final or

effective or is otherwise rescinded, withdrawn or abrogated before the Effective Date of the

Settlement, then all amounts that have been paid by HIMSS into the Escrow Account shall be

returned to HIMSS.


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C. Administrator Of The Cash Fund. For the purposes of Section 468B of the

Internal Revenue Code of 1986, as amended, and Treasury Regulation Section 1.468B as

promulgated thereunder, the “administrator” shall be the Settlement Administrator or its

successors. The Settlement Administrator shall have the authority to conduct any and all

activities necessary to administer the Cash Fund. The Settlement Administrator shall submit

personally to the jurisdiction of the Court. The Settlement Administrator shall be indemnified

out of the Cash Fund and held harmless by Plaintiffs and the Settlement Class from any claims

made by any Settlement Class Member or its counsel that attempts to assert a right of payment,

reimbursement or garnishment against the Cash Fund other than as permitted by this Settlement

Agreement. No individual Settlement Class Member, however, shall be obligated to indemnify

the Settlement Administrator for more than the individual Settlement Class Member’s pro-rata

share of the Cash Fund.

D. QSF-Related Duties Of The Settlement Administrator. The Settlement

Administrator shall timely and properly file, or cause to be filed, all federal, state or local tax

returns and information returns (together, “Tax Returns”) necessary or advisable with respect to

the earnings on the funds deposited in the Cash Fund (including without limitation the returns

described in Treasury Regulation Section 1.468B-2(k)). Such Tax Returns shall be consistent

with this subparagraph and in all events shall reflect that all taxes (including any estimated taxes,

earnings or penalties) on the income earned on the funds deposited in the Cash Fund shall be

paid out of such funds as provided herein. In all events, Defense Counsel shall have no liability

or responsibility whatsoever for the taxes or the filing of any Tax Return or other document with

the Internal Revenue Service or any other state or local taxing authority. Defense Counsel shall

have no liability or responsibility for the taxes of the Cash Fund with respect to the Cash Fund


22

Amount nor the filing of any Tax Returns or other documents with the Internal Revenue Service

or any other taxing authority, nor any expenses associated therewith. In the event any taxes are

owed by HIMSS or Defense Counsel on any earnings on the funds on deposit in the Cash Fund,

such amounts shall also be paid out of the Cash Fund. Taxes with respect to the Cash Fund shall

be treated as, and considered to be, a cost of administration of the Settlement and shall be timely

paid, or caused to be paid, by the Settlement Administrator out of the Cash Fund without prior

order from the Court. The Settlement Administrator shall be obligated (notwithstanding

anything herein to the contrary) to withhold from distribution to the Settlement Class any funds

necessary to pay such amounts (as well as any amounts that may be required to be withheld

under Treasury Regulation Section 1.468B-2(l)(2)). The Parties agree to cooperate with each

other, and their tax attorneys and accountants to the extent reasonably necessary, to carry out

these provisions. The Settlement Administrator shall obtain a Federal Taxpayer Identification

Number for the Cash Fund upon the execution of an order by the Court establishing the Cash

Fund. The Settlement Administrator is authorized, upon final distribution of all monies paid into

the Cash Fund, to take appropriate steps to wind down the Cash Fund and thereafter the

Settlement Administrator is discharged from any further responsibility with respect to the Cash

Fund.

VI. DUTIES OF THE SETTLEMENT ADMINISTRATOR

A. Promptly after preliminary approval, the Settlement Administrator will issue

Class Notice and administer the Notice Program, receive and appropriately respond to all claims

submitted by a member of the Settlement Class and otherwise administer the Settlement

Agreement. Plaintiffs and Class Counsel shall be permitted to review such claims upon request

to HIMSS.


23

B. The Settlement Administrator will (1) assign personnel to manage the settlement

implementation process, including the Notice Program, (2) establish a toll-free telephone number

that members of the Class may call to obtain information, (3) establish an email address and a

mailing address to which members of the Settlement Class can send claims and (4) create a

Settlement Webpage containing information about the Settlement, including the Published

Notice and the Claim Form for download or electronic submission.

C. The Settlement Administrator shall receive, evaluate and either approve or

disapprove Claim Forms under the requirements of the Settlement. The Settlement

Administrator shall send a notice of claim denial by First-Class Mail to each Settlement Class

Member that submitted a Claim Form that the Settlement Administrator determines not to be a

valid claim.

VII. NOTIFICATION TO CLASS MEMBERS

A. The Parties agree that the following Notice Program provides reasonable notice to

the Settlement Class.

B. No later than thirty (30) days following the entry of the Preliminary Approval

Order, and sooner if practicable, the Settlement Administrator will mail the Court-approved

Mailed Notice (Exhibit A-2) to all potential Settlement Class Members at their last known

address as provided to HIMSS upon registration for the HIMSS 2020 Conference or at an

alternative, readily-ascertainable address by First-Class Mail, postage prepaid.

C. No later than thirty (30) days following the entry of the Preliminary Approval

Order, and sooner if practicable, the Settlement Administrator will email the Court-approved

Emailed Notice (Exhibit A-2) to all potential Settlement Class Members at the email address (if

any) which they provided to HIMSS upon registration for the HIMSS 2020 Conference or at an

alternative, readily-ascertainable email address if available.


24

D. The Settlement Administrator will forward notices that are returned by the United

States Postal Service with a forwarding address. Following receipt of any returned notices that

do not include a forwarding address, the Settlement Administrator shall as soon as practicable

(itself or through an appropriate vendor) research such returned mail for more accurate addresses

and promptly mail copies of the applicable notice to any more accurate addresses so found.

E. No later than fourteen (14) days after the entry of the Preliminary Approval

Order, and sooner if practicable, the Settlement Administrator will cause the Settlement

Webpage located on www.himss.org to be updated to provide information and relevant

documents related to this Settlement, including but not limited to, the following: applicable

deadlines; Published Notice; Mailed Notice; Emailed Notice; orders of the Court pertaining to

the Settlement; this Settlement Agreement; and contact addresses for questions. The Settlement

Webpage shall be rendered inactive thirty (30) days after the Effective Date. Class Counsel and

Defense Counsel shall agree on all information and documents to be posted on the Settlement

Webpage.

F. Class Counsel, Defense Counsel and HIMSS will cooperate in the Notice

Program by providing one another with information necessary to affect notice to the Settlement

Class.

G. As appropriate, Class Counsel and/or HIMSS shall provide an affidavit to the

Court attesting to the Notice Program and all measures undertaken to provide notice of the

Settlement to the Settlement Class no later than twenty-one (21) days before the Final Approval

Hearing.

H. In compliance with the attorney general notification provision of the Class Action

Fairness Act, 28 U.S.C. § 1715, within ten (10) days after the motion for preliminary approval is


25

filed, the Settlement Administrator shall provide notice of this proposed Settlement, as well as all

other documents required by the Class Action Fairness Act, to the Attorney General of the

United States, and to the attorneys general of each state or territory in which Settlement Class

Members may reside. The Settlement Administrator will provide copies of such notifications to

Class Counsel and Defense Counsel at the time of their submission to the attorneys general.

VIII. REQUESTS FOR EXCLUSION BY SETTLEMENT CLASS MEMBERS

A. The provisions of this paragraph shall apply to any Request for Exclusion. Any

member of the Settlement Class may make a Request for Exclusion by mailing or delivering

such request in writing to the Settlement Administrator as specified in the Class Notice. Any

Request for Exclusion must be postmarked or delivered not later than the Opt-Out Deadline.

Any Request for Exclusion must:

i. Have the signature of the member of the Settlement Class, even if

represented by counsel. If the member of the Settlement Class is an entity

and not an individual, the Request for Exclusion must be signed by an

officer or director of the entity with authority to act on behalf of that

entity. If the Settlement Class Member is represented by counsel, the

Request for Exclusion shall also be signed by that attorney,

ii. State the name, address and telephone number of the Person requesting

exclusion, and

iii. Contain a clear and unambiguous statement communicating that such

Person elects to be excluded from the Settlement Class, does not wish to

be a Settlement Class Member and elects to be excluded from any

judgment entered pursuant to the Settlement.

B. A member of the Settlement Class may opt out on an individual basis only; so-

called “mass” or “class” opt outs shall not be allowed.

C. Any member of the Settlement Class that submits a timely Request for Exclusion

may not file an objection to the Settlement and shall be deemed to have waived any rights or

benefits under this Settlement Agreement. If the Person requesting exclusion is represented by


26

counsel, the Request for Exclusion shall also be signed by the attorney who represents him or

her.

D. Not later than seven (7) business days after the deadline for submission of

Requests for Exclusion, the Settlement Administrator shall provide an Opt-Out List to Class

Counsel and Defense Counsel together with copies of each Request for Exclusion. Class

Counsel and Defense Counsel shall submit the names appearing on the Opt-Out List to the Court

under seal at the time of the Final Approval Hearing.

E. Any member of the Settlement Class that has not timely and properly filed a

written Request for Exclusion from the Settlement Class shall be bound by this Settlement and

by all subsequent procedures, orders and judgments in this action.

F. Any member of the Settlement Class that elects to Opt Out of the Settlement

Class pursuant to this Section shall not be entitled to relief under or be affected by the Settlement

Agreement.

G. Class Counsel agree that they will not represent any Persons that opt out of the

Settlement in asserting claims against HIMSS that are the subject of this Settlement Agreement.

H. Any member of the Settlement Class that fails to submit a timely and complete

Request for Exclusion sent to the proper address shall be subject to and bound by this Settlement

and every order or judgment entered pursuant to this Settlement. Any purported Request for

Exclusion or other communication sent to such address that is unclear or internally inconsistent

with respect to the Settlement Class Member’s desire to be excluded from the Settlement Class

will be deemed invalid unless determined otherwise by the Court. Requests for Exclusion signed

only by counsel or another representative shall not be permitted.


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IX. OBJECTIONS BY SETTLEMENT CLASS MEMBERS

A. Any Settlement Class Member that wishes to be heard at the Final Approval

Hearing, or that wishes for any objection to be considered, must file a written notice of objection

by the Objection Date. Such objection must:

i. Have the signature of the member of the Settlement Class objecting, even

if represented by counsel. If the member of the Settlement Class is an

entity and not an individual, the objection must be signed by an officer or

director of the entity with authority to act on behalf of that entity. If the

Settlement Class Member that is objecting to the Settlement is represented

by counsel, the objection shall also be signed by that attorney,

ii. State the name, address and telephone number of the Person objecting,

iii. State the name, address and telephone number of every attorney

representing or assisting the objector,

iv. Contain a detailed statement of each objection asserted, including the

grounds for objection and reasons for appearing and being heard, together

with any documents such Person wishes to be considered in support of the

objection;

v. Contain a list of all cases in which the Person objecting or the Person’s

counsel filed or in any way participated – financially or otherwise –

objecting to a class settlement during the preceding five years;

vi. Contain a statement regarding whether the Person objecting intends to

appear at the Final Approval Hearing, either with or without counsel, and

a list of all persons, if any, who will be called to testify in support of the

objection.

B. Settlement Class Members may not both object and opt out. If a Class Member

submits both a Request for Exclusion and an objection, the Request for Exclusion shall be

controlling.

C. The agreed-upon procedures and requirements for filing objections in connection

with the Final Approval Hearing are intended to ensure the efficient administration of justice and

the orderly presentation of any Settlement Class Members’ objections to the Settlement

Agreement, in accordance with such Settlement Class Members’ due process rights.


28

D. The Preliminary Approval Order and Class Notice will require all Settlement

Class Members that have any objections to file such notice of objection, including any request to

be heard, with the Clerk of the Court, and serve by mail or hand delivery such notice of

objection, including any request to be heard, including all papers or evidence in support thereof,

upon one of the Class Counsel and Defense Counsel, at the addresses set forth in the Class

Notice, no later than the Objection Date. The Preliminary Approval Order will further provide

that objectors that fail to properly or timely file their objections with the Clerk of the Court,

along with the required information and documentation set forth above, or to serve them as

provided above, shall not be heard during the Final Approval Hearing, shall not have their

objections be considered by the Court and shall be foreclosed from seeking any adjudication or

review of the Settlement by appeal or otherwise.

E. In accordance with law, only Settlement Class Members that have objected to the

Settlement pursuant to the terms above may appeal any Final Order and Judgment. The

proposed Final Order and Judgment shall provide that any Settlement Class Member that wishes

to appeal the Final Order and Judgment, which appeal will delay the distribution of benefits to

the Settlement Class, may be required to post a bond as required by the Court in an amount to be

determined by the Court as a condition of prosecuting such appeal.

X. ATTORNEYS’ FEES AND COSTS AND SERVICE AWARDS

A. Attorneys’ Fees and Expenses. All Attorneys’ Fees and Expenses shall be paid

out of the Cash Fund in an amount to be awarded by the Court. Class Counsel will apply to the

Court for an award of Attorneys’ Fees and Costs. Class Counsel’s request for Attorneys’ Fees

and Expenses will not exceed one million dollars ($1 million) in aggregate fees and costs.

HIMSS will not oppose Class Counsel’s application for said award of fees and expenses. Class

Counsel shall be entitled to the Attorneys’ Fees and Expenses awarded by the Court (subject to


29

the limitations of this Section and provided that Class Counsel has first provided to the

Settlement Administrator completed W-9 forms and completed wire transfer form) thirty (30)

days after the Effective Date. All such amounts will be paid from the Cash Fund. Class Counsel

shall file their papers in support of any application for Attorneys’ Fees and Expenses no later

than the Notice Date.

B. Service Award For Plaintiffs. In recognition for Plaintiffs’ work on behalf of

the Settlement Class, HIMSS agrees not to oppose an application for Service Awards not to

exceed $8,860.00 (eight thousand eight hundred sixty dollars) for HatchMed Corp. and

$30,660.00 (thirty thousand six hundred sixty dollars) for Novarad Corporation, which equates to

eighty percent (80%) of Plaintiffs’ respective 2020 Conference Fees. Any Service Award

ordered by the Court will be paid exclusively out of the Cash Fund thirty (30) days after the

Effective Date, provided that Class Counsel have provided to the Settlement Administrator

completed W-9 forms for the Named Plaintiffs and wire transfer forms at least twenty-one (21)

days before payment. Plaintiffs will be entitled to sign up for future HIMSS events on mutually

agreeable terms notwithstanding their filing the Litigation or their participation therein. Any

Service Award is in addition to other payments to which Plaintiffs may be entitled under the

Settlement. Class Counsel shall file their papers in support of any application for Service

Awards for Plaintiffs no later than the Notice Date.

XI. FINAL ORDER AND JUDGMENT, RELEASE, DISMISSAL

OF ACTION AND JURISDICTION OF COURT

A. If this Settlement Agreement (including any modification thereto made with the

consent of the Parties as provided for herein) is approved by the Court following the Final

Approval Hearing scheduled by the Court in its Preliminary Approval Order, the Parties shall


30

request the Court to enter a Final Order and Judgment pursuant to the Federal Rules of Civil

Procedure and all applicable laws, that, among other things:

1. Finds that the Court has and retains personal jurisdiction over Plaintiffs

and all Settlement Class Members and that the Court has subject matter jurisdiction to approve

this Settlement and Settlement Agreement and all exhibits thereto;

2. Certifies a Settlement Class solely for purposes of this Settlement;

3. Grants final approval to this Settlement Agreement as being fair,

reasonable and adequate as to all Parties, consistent and in compliance with all requirements of

due process and applicable law and in the best interests of all Parties and directs the Parties and

their counsel to implement and consummate this Settlement Agreement in accordance with its

terms and provisions;

4. Declares this Settlement Agreement and the Final Order and Judgment to

be binding on and to have res judicata and preclusive effect in all pending and future lawsuits or

other proceedings encompassed by the Release maintained by or on behalf of the Releasing

Parties;

5. Finds that the Notice Program implemented pursuant to this Settlement

Agreement: (a) constituted reasonable notice; (b) constituted notice that was reasonably

calculated under the circumstances to apprise Settlement Class Members of the pendency of the

Litigation, of their right to object to or exclude themselves from the proposed Settlement, of their

right to appear at the Final Approval Hearing and of their right to seek relief; (c) constituted

reasonable, due, adequate and sufficient notice to all Persons entitled to receive notice; and

(d) met all applicable requirements of due process and any other applicable law;


31

6. Finds that Class Counsel and Plaintiffs adequately represented the

Settlement Class for purposes of entering into and implementing the Settlement and Settlement

Agreement;

7. Dismisses the Litigation now pending before the Court on the merits and

with prejudice and without fees or costs except as provided herein, in accordance with the terms

of the Final Order and Judgment as set forth herein;

8. Adjudges that Plaintiffs and the Settlement Class as well as all of the

Releasing Parties have conclusively and forever compromised, settled, dismissed and released

any and all Released Claims against HIMSS and the Released Parties;

9. Approves payment of the Attorneys’ Fee and Expenses to Class Counsel

and Plaintiffs’ Service Awards in a manner consistent with Section X above;

10. Without affecting the finality of the Final Order and Judgment for

purposes of appeal, reserves jurisdiction over HIMSS, Plaintiffs, Class Counsel and the

Settlement Class Members as to all matters relating to the administration, consummation,

enforcement and interpretation of the terms of the Settlement and Final Order and Judgment and

for any other necessary purposes;

11. Provides that upon the Effective Date, Plaintiffs and all Settlement Class

Members that have not been excluded from the Settlement Class shall be barred from asserting

any Released Claims against HIMSS or any Released Parties, and any such Settlement Class

Members shall have released any and all Released Claims as against HIMSS and all Released

Parties;

12. Determines that the Settlement Agreement and the Settlement provided for

herein and any proceedings taken pursuant thereto are not and should not in any event be offered


32

or received as evidence of, a presumption, concession or an admission of liability, of breach of

any contract or of any misrepresentation or omission in any statement or written document

approved or made by HIMSS or any Released Parties or of the suitability of these or similar

claims to class treatment in active litigation and trial; provided, however, that reference may be

made to this Settlement Agreement and the Settlement provided for herein in such proceedings

as may be necessary to effectuate the Settlement Agreement;

13. Bars and permanently enjoins all Settlement Class Members that have not

been properly excluded from the Settlement Class from (a) filing, commencing, prosecuting,

intervening in or participating (as class members or otherwise) in any other lawsuit or

administrative, regulatory, arbitration or other proceeding in any jurisdiction based on, relating to

or arising out of the claims and causes of action or the facts and circumstances giving rise to the

Litigation or the Released Claims and (b) organizing Settlement Class Members that have not

been excluded from the class into a separate class for purposes of pursuing as a purported class

action any lawsuit or arbitration or other proceeding (including by seeking to amend a pending

Complaint to include class allegations or seeking class certification in a pending action) based

on, relating to or arising out of the claims and causes of action or the facts and circumstances

giving rise to the Litigation or the Released Claims, except that Settlement Class Members are

not precluded from participating in any investigation or suit initiated by a state or federal agency;

14. Approves the Opt-Out List and determines that the Opt-Out List is a

complete list of all members of the Settlement Class that have timely requested exclusion from

the Settlement Class and, accordingly, shall neither share in nor be bound by the Final Order and

Judgment; and


33

15. Authorizes the Parties, without further approval from the Court, to agree

to and adopt such amendments, modifications and expansions of this Agreement and all Exhibits

hereto as (a) shall be consistent in all material respects with the Final Order and Judgment and

(b) do not limit the rights of the Parties or Settlement Class Members.

B. As of the Effective Date, the Releasing Parties are deemed to have fully released

and forever discharged the Released Parties of and from all Released Claims by operation of

entry of the Final Order and Judgment and Order of Dismissal. Without in any way limiting the

scope of the Release, this Release covers, without limitation, any and all claims for attorneys’

fees, costs or disbursements incurred by Class Counsel or any other counsel representing

Plaintiffs or Settlement Class Members, or any of them, in connection with or related in any

manner to the Litigation, the Settlement, the administration of such Settlement and/or the

Released Claims as well as any and all claims for Service Awards to Plaintiffs.

C. Subject to Court approval, all Settlement Class Members that have not excluded

themselves from the Settlement Class shall be bound by this Agreement and the Release and all

of their claims shall be dismissed with prejudice and released, irrespective of whether they

received actual notice of the Litigation or this Settlement.

D. The Releasing Parties and the Released Parties expressly acknowledge that they

are familiar with principles of law such as Section 1542 of the Civil Code of the State of

California, which provides as follows:

A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE

CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT

TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING

THE RELEASE AND THAT, IF KNOWN BY HIM OR HER, WOULD

HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH

THE DEBTOR OR RELEASED PARTY.


34

Notwithstanding California or other law, the Releasing Parties and the Released Parties hereby

expressly agree that the provisions, rights and benefits of Section 1542 and all similar federal or

state laws, rights, rules or legal principles of any other jurisdiction that may be applicable herein

are hereby knowingly and voluntarily waived, released and relinquished to the fullest extent

permitted by law solely in connection with unknown claims that are the same as, substantially

similar to, or overlap the Released Claims, and the Releasing Parties and the Released Parties

hereby agree and acknowledge that this is an essential term of the Release. In connection with

the Release, the Releasing Parties and the Released Parties acknowledge that they are aware that

they may hereafter discover claims presently unknown and unsuspected or facts in addition to or

different from those which they now know or believe to be true with respect to matters released

herein, and that such claims, to the extent that they are the same as, substantially similar to, or

overlap the Released Claims, are hereby released, relinquished and discharged.

E. Nothing in the Release shall preclude any action to enforce the terms of this

Agreement, including participation in any of the processes detailed herein.

XII. WITHDRAWAL FROM OR TERMINATION OF SETTLEMENT

A. Within fifteen (15) days after the occurrence of any of the following events and

upon written notice to counsel for all Parties, a Party shall have the right to withdraw from the

Settlement and terminate this Settlement Agreement:

1. If the Court denies either the motion for preliminary approval or denies the

motion for final approval or fails to approve the Settlement Agreement as written, or if on appeal

the Court’s approval is reversed or modified;

2. If the Court materially alters any of the terms of the Settlement

Agreement, provided however that any modification to an award of Attorneys’ Fees and

Expenses or to the Service Award shall not constitute a material alteration; or


35

3. If the Preliminary Approval Order, as described in Section III(B) above, or

the Final Order and Judgment, as described in Section XI(A) above, is not entered by the Court

or is reversed or modified on appeal, or otherwise fails for any reason.

In the event of a withdrawal pursuant to this Paragraph A, any certification of a

Settlement Class will be vacated, without prejudice to any Party’s position on the issue of class

certification and the amenability of the claims asserted in the Litigation to class treatment, and

the Parties shall be restored to their litigation position existing immediately before the execution

of this Settlement Agreement.

B. If Settlement Class Members properly and timely submit Requests for Exclusion

from the Settlement Class as set forth in Section VIII above, thereby becoming Opt Outs, and are

in a number more than indicated in the Parties’ separate filing under seal with the Court, then

HIMSS may withdraw from the Settlement and terminate this Settlement Agreement. In that

event, all of HIMSS’ obligations under this Settlement Agreement shall cease to be of any force

and effect; the certification of the Settlement Class shall be vacated without prejudice to HIMSS’

position on the issue of class certification; and the Parties shall be restored to their litigation

position existing immediately before the execution of this Settlement Agreement.

C. In order to elect to withdraw from the Settlement and terminate this Settlement

Agreement on the basis set forth in Paragraph B above, HIMSS must notify Class Counsel in

writing of its election to do so within ten (10) business days after the Opt-Out List is finalized by

the Settlement Administrator. In the event that HIMSS exercises such right, Class Counsel shall

have thirty (30) business days or such longer period as agreed to by the Parties to address the

concerns of the Opt Outs. If through such efforts the total number of members of the Opt-Out

List subsequently becomes and remains fewer than the number indicated in the Parties’ separate


36

filing under seal with the Court, HIMSS shall withdraw its election to withdraw from the

Settlement and terminate the Settlement Agreement. In no event, however, shall HIMSS have

any further obligation under this Settlement Agreement to any Opt Out unless such Settlement

Class Member withdraws his/her Request for Exclusion.

D. For purposes of this Section XII, Opt Outs shall not include (i) Persons that are

specifically excluded from the Settlement Class under Section III, Paragraph A(i) - A(iii) above,

(ii) Opt Outs that elect to withdraw their Request for Exclusion and therefore become Settlement

Class Members and (iii) Opt Outs that agree to sign an undertaking that they will not pursue an

individual claim, class claim or any other claim that would otherwise be a Released Claim as

defined in this Settlement Agreement.

E. In the event of withdrawal by HIMSS in accordance with the terms set forth in

this Section XII, the Settlement Agreement shall be null and void, shall have no further force and

effect with respect to any Party in the Litigation and shall not be offered in evidence or used in

any litigation for any purpose, including the existence, certification or maintenance of any

proposed or existing class or as evidence of or as an argument for the amenability of these or

similar claims to class treatment. In the event of such withdrawal, this Settlement Agreement

and all negotiations, proceedings, documents prepared and statements made in connection

herewith shall be without prejudice to HIMSS, Plaintiffs and the Settlement Class Members and

shall not be deemed or construed to be an admission or confession in any way by any Party of

any fact, matter or proposition of law and shall not be used in any manner for any purpose, and

the Parties to the Litigation shall stand in the same position as if this Settlement Agreement had

not been negotiated, made or filed with the Court.


37

XIII. EFFECTIVE DATE

A. The Effective Date of this Settlement Agreement shall be seven (7) days after the

date when each and all of the following conditions have occurred:

1. This Settlement Agreement has been fully executed by all Parties and their

counsel;

2. Orders have been entered by the Court certifying the Settlement Class,

granting preliminary approval of this Settlement Agreement and approving the form of Class

Notice, all as provided above;

3. Class Notice has been sent by means of the Notice Program, as provided

above;

4. The Court has entered a Final Order and Judgment finally approving this

Settlement Agreement, as provided above; and

5. The Final Order and Judgment has become Final as defined in Paragraph

B below.

B. “Final,” when referring to a judgment or order means that (1) the judgment is a

final, appealable judgment and (2) either (a) no appeal has been taken from the judgment as of

the date on which all times to appeal therefrom have expired or (b) an appeal or other review

proceeding of the judgment having been commenced, such appeal or other review is finally

concluded and no longer is subject to review by any court, whether by appeal, petitions or

rehearing or re-argument, petitions for rehearing en banc, petitions for writ of certiorari or

otherwise, and such appeal or other review has been finally resolved in a manner that affirms the

Final Order and Judgment in all material respects.

C. If, for any reason, this Settlement Agreement fails to become Final pursuant to the

foregoing Paragraph B, the orders, judgment and dismissal to be entered pursuant to this


38

Settlement Agreement shall be vacated, and the Parties will be returned to the status quo ante

with respect to the Litigation as if this Settlement Agreement had never been entered into.

XIV. REPRESENTATIONS, WARRANTIES AND COVENANTS

A. Class Counsel, who are signatories hereof, represent and warrant that they have

the authority, on behalf of Plaintiffs, to execute, deliver and perform this Settlement Agreement

and to consummate all of the transactions contemplated hereby. This Settlement Agreement has

been duly and validly executed and delivered by Class Counsel and Plaintiffs and constitutes

their legal, valid and binding obligation.

B. HIMSS, through its undersigned attorneys, represents and warrants that it has the

authority to execute, deliver and perform this Settlement Agreement and to consummate the

transactions contemplated hereby. The execution, delivery and performance by HIMSS of this

Settlement Agreement and the consummation by HIMSS of the actions contemplated hereby

have been duly authorized by all necessary corporate action on the part of HIMSS. This

Settlement Agreement has been duly and validly executed and delivered by HIMSS and

constitutes its legal, valid and binding obligation.

XV. ADDITIONAL PROVISIONS

A. The Parties have agreed, and Plaintiffs and Class Counsel expressly consent, that

HIMSS shall be entitled to communicate on an individual basis with Settlement Class Members

following preliminary approval, notwithstanding the preliminary or ultimate final certification of

the Settlement Class or any other class, in order to prepare for the HIMSS 2021 Conference,

negotiate the attendance of Settlement Class Members at the HIMSS 2021 Conference and

related contracts and payments and enter into individual settlement agreements and/or releases

with individual Settlement Class Members related to the Released Claims or the HIMSS 2020

Conference. Any Settlement Class Member that signs an individual settlement and release


39

agreement pursuant to this Paragraph A following preliminary approval shall not be considered

an Opt Out as defined in Section II, Paragraph 28.

B. This Settlement Agreement and the exhibits and related documents hereto as well

as any payment of moneys or any other action taken by HIMSS pursuant to any provision of this

Settlement Agreement are not and shall not at any time be construed or deemed to be or to

evidence any admission against or concession by HIMSS with respect to any wrongdoing, fault

or omission of any kind whatsoever, whether or not this Settlement Agreement results in entry of

a Final Order and Judgment as contemplated herein. This Settlement Agreement shall not be

offered or be admissible in evidence against the Parties or cited or referred to in any action or

proceeding, except in an action or proceeding brought to enforce its terms. HIMSS denies any

liability to Plaintiffs and to all members of the Settlement Class. This provision shall survive the

expiration or voiding of the Settlement Agreement.

C. This Settlement Agreement is entered into only for purposes of settlement. In the

event that the Effective Date does not occur for any reason or the Final Order and Judgment is

not entered, then this Settlement Agreement, including any Release or dismissals hereunder, is

cancelled and null and void. In the event this Settlement Agreement is cancelled or deemed

cancelled, no term or condition of this Settlement Agreement, or any draft thereof, or of the

discussion, negotiation, documentation or other part or aspect of the Parties’ settlement

discussions shall have any effect, nor shall any such matter be admissible in evidence for any

purpose, or used for any purposes whatsoever in the Litigation or in any other litigation, and all

Parties shall be restored to their prior rights positions as if the mediation had never occurred and

the Settlement Agreement had not been entered into.


40

D. The Parties stipulate to stay all proceedings in the Litigation until the approval of

this Settlement Agreement has been finally determined, except the stay of proceedings shall not

prevent the filing of any motions, affidavits and other matters necessary to obtain and preserve

final judicial approval of this Settlement Agreement.

E. The headings of the sections and paragraphs of this Settlement Agreement are

included for convenience only and shall not be deemed to constitute part of this Settlement

Agreement or to affect its construction.

F. This Settlement Agreement, including all exhibits attached hereto, may not be

modified or amended except in writing signed by all of the Parties or their counsel.

G. There shall be no waiver of any term or condition absent an express writing to

that effect by the non-waiving Party. No waiver of any term or condition in this Settlement

Agreement shall be construed as a waiver of a subsequent breach or failure of the same term or

condition or waiver of any other term or condition of this Settlement Agreement.

H. In the event that there are any developments in the effectuation and administration

of this Settlement Agreement that are not dealt with by the terms of this Settlement Agreement,

then such matters shall be dealt with as agreed upon by the Parties, and failing agreement, as

shall be ordered by the Court. The Parties shall execute all documents and use their best efforts

to perform all acts necessary and proper to promptly effectuate the terms of this Settlement

Agreement and to take all necessary or appropriate actions to obtain judicial approval of this

Settlement Agreement in order to give this Settlement Agreement full force and effect. The

executing of documents must take place prior to the date scheduled for the preliminary approval

hearing.


41

I. This Settlement Agreement may be executed in one or more counterparts, each of

which shall be deemed an original but all of which together shall constitute one and the same

instrument.

J. This Settlement Agreement shall be governed by and construed in accordance

with the substantive laws of the State of Illinois, without giving effect to any choice or conflict of

law provision, or rule that would cause the application of the laws of any other jurisdiction.

K. Except as otherwise provided in this Settlement Agreement, each party to this

Settlement Agreement shall bear his or its own costs of the Litigation.

L. No Person shall have any claim against Plaintiffs, Class Counsel, HIMSS,

Defense Counsel, the Settlement Administrator or the Released Parties or their agents based on

administration of the Settlement substantially in accordance with the terms of the Settlement

Agreement or any order of the Court or any appellate court.

M. Plaintiffs represent and warrant that no portion of any claim, right, demand, action

or cause of action against the Released Parties that Plaintiffs have or may have arising out of any

allegations made in any of the actions comprising the Litigation or pertaining to any of the

Released Claims, and no portion of any recovery or settlement to which Plaintiffs may be

entitled, has been assigned, transferred or conveyed by or for Plaintiffs in any manner or is

subject to an attorneys’ lien; and no Person other than Plaintiffs have any legal or equitable

interest in the claims, demands, actions, or causes of action referred to in this Settlement

Agreement as those of Plaintiffs.

N. If any clause, provision or paragraph of this Settlement Agreement shall, for any

reason, be held illegal, invalid or unenforceable, such illegality, invalidity or unenforceability

shall not affect any other clause, provision or paragraph of this Settlement Agreement, and this


42

Settlement Agreement shall be construed and enforced as if such illegal, invalid or unenforceable

clause, paragraph or other provisions had not been contained herein.

O. The Parties to this Settlement Agreement reserve the right, by agreement and

subject to the Court’s approval, to grant any reasonable extensions of time that might be

necessary to carry out any of the provisions of this Settlement Agreement.

P. All agreements made and orders entered during the course of the Litigation

relating to the confidentiality of information shall survive this Agreement.

Q. Within thirty (30) days after the Effective Date, Class Counsel and Defense

Counsel will return all confidential material produced by one to the other in discovery or

otherwise in connection with the Litigation.

R. This Agreement will be binding upon and inure to the benefit of the successors

and assigns of the Parties.

S. The determination of the terms of and the drafting of this Settlement Agreement,

including its exhibits, has been by mutual agreement after negotiation, with consideration by and

participation of all Parties and their counsel. Since this Settlement Agreement was drafted with

the participation of all Parties and their counsel, the presumption that ambiguities shall be

construed against the drafter does not apply. Each of the Parties was represented by competent

and effective counsel throughout the course of settlement negotiations and in the drafting and

execution of this Settlement Agreement, and there was no disparity in bargaining power among

the Parties to this Settlement Agreement. In entering into this Settlement Agreement, none of the

Parties relied on advice received from any other Party or any other Party’s counsel.


43

T. Integrated Agreement:

1. All of the exhibits to this Settlement Agreement are material and integral

parts hereof, and are fully incorporated herein by reference.

2. This Settlement Agreement and the exhibits thereto constitute the entire,

fully integrated agreement among the Parties and cancel and supersede all prior written and

unwritten agreements and understandings pertaining to the Settlement of the Litigation. The

Parties acknowledge, stipulate and agree that no covenant, obligation, condition, representation,

warranty, inducement, negotiation or understanding concerning any part of the subject matter of

this Settlement Agreement has been made or relied on except as expressly set forth herein.

U. Any notice, request or instruction or other document to be given by any Party to

this Settlement Agreement to any other Party to this Settlement Agreement (other than the Class

Notice and CAFA Notices) shall be in writing and delivered personally or sent by registered or

certified mail, postage prepaid to the following addresses:

All Notices to Class Counsel or Plaintiffs shall be sent to:

Peyton J. Healey

Joshua L. Hedrick

Jacob B. Kring

HEDRICK KRING, PLLC

1700 Pacific Avenue, Suite 4650

Dallas, Texas 75201

All Notices to Defense Counsel or HIMSS shall be sent to:

Mark S. Mester

Robert C. Collins III

Kirsten C. Lee

LATHAM & WATKINS LLP

330 North Wabash Avenue, Suite 2800

Chicago, Illinois 60611

The notice recipients and addresses designated above may be changed by written notice. Upon

the request of any of the Parties, the Parties agree to promptly provide each other with copies of


44

comments, objections, Requests for Exclusion or other documents or filings received as a result

of the Class Notice.

V. Plaintiffs and Class Counsel hereby agree to not engage in any communications

with the media or the press, on the Internet or in any public forum, orally or in writing, that relate

to this Settlement, the Litigation or the claims or allegations in the Litigation other than

statements that are fully consistent with the Class Notice. Notwithstanding the foregoing,

however, the Parties agree to work together on the language for a joint statement related to the

Settlement of the Litigation to be issued only following the Effective Date.

W. The Court shall retain continuing and exclusive jurisdiction over the Parties to this

Settlement Agreement for the purpose of the administration and enforcement of this Settlement

Agreement.

[The Remainder Of This Page Is Intentionally Left Blank]


Dr. Wendell Gibby

President / Owner

Brian Hatch

Harold F. Wolf, III

DocuSign Envelope ID: 961E2B80-A1BB-4781-8E79-F6DCE8958B41

President and CEO

3/2/2021


IN WITNESS WHEREOF, the Parties have executed and caused this Settlement

Agreement to be executed by their duly authorized attorneys below.

Plaintiff: Novarad Corporation

By:Dr. Wendell Gibby

Its:

Date:

Plaintiff: HatchMed Corp.

By:Brian Hatch

Its:

Date:

HEDRICK KRING, PLLC

Peyton J. Healey 1700 Pacific Avenue, Suite 4650 Dallas, Texas 75201 Telephone: (214) 880-9600 Facsimile: (214) 481-1844 Email: [email protected]

Counsel for Plaintiffs

Defendant: Healthcare Information and Management Systems Society

By: Harold F. Wolf, III

Its:

Date:

Approved as to form: LATHAM & WATKINS LLP

Mark S. Mester 330 North Wabash Avenue, Suite 2800 Chicago, Illinois 60611 Telephone: (312) 876-7700 Facsimile: (312) 993-9767

Counsel for Defendant


EXHIBIT A-1


IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

HATCHMED CORP. and NOVARAD

CORPORATION, on behalf of themselves

and others similarly situated,

Plaintiffs,

v.

HEALTHCARE INFORMATION AND

MANAGEMENT SYSTEMS SOCIETY,

Defendant.

)

)

)

)

)

)

)

)

)

)

)

Case No. 1:20-cv-03377

Judge Martha M. Pacold

Magistrate Judge Jeffrey T. Gilbert

[PROPOSED] ORDER GRANTING PRELIMINARY

APPROVAL OF CLASS ACTION SETTLEMENT

Before the Court is the Unopposed Motion for Preliminary Approval of Settlement

(“Motion”) of Plaintiffs HatchMed Corp. and Novarad Corporation (“Plaintiffs”). Plaintiffs in this

lawsuit (the “Litigation”) allege that they and the proposed Settlement Class paid fees for

exhibition space, meeting space and/or sponsorships at the HIMSS 2020 Conference (“2020

Conference Fees”), that Healthcare Information and Management Systems Society (“HIMSS” or

“Defendant”) wrongfully cancelled the HIMSS 2020 Conference on or about March 5, 2020 due

to the COVID-19 pandemic and that class members suffered damages and are entitled to relief as

a result.1

On February 25, 2021, Plaintiffs and HIMSS (together, the “Parties”) executed a Class

Action Settlement Agreement (“Settlement Agreement”) on behalf of themselves and the

Settlement Class that Plaintiffs seek to certify. Having thoroughly reviewed the Settlement

1 Capitalized terms not defined herein have the definitions given to them in the Settlement

Agreement. Dkt. 35 § II.


2

Agreement and exhibits thereto and having considered the arguments of the Parties, THE COURT

HEREBY FINDS, CONCLUDES AND ORDERS THE FOLLOWING:

1. The Parties have agreed to a class action settlement of all Released Claims.

Plaintiffs seek, and for purposes of settlement only HIMSS does not object to, certification of a

Settlement Class with the following definition:

All Persons that at any time prior to Preliminary Approval paid fees to HIMSS for

exhibition space, meeting space and/or sponsorships at the HIMSS 2020

Conference and that have not already settled and released their claims.

Specifically excluded are the following Persons:

(i) HIMSS and its subsidiaries and affiliates, employees, officers,

directors, agents and representatives and their family members;

(ii) Class Counsel;

(iii) The judges who have presided over the Litigation; and

(iv) All Persons that have timely elected to become Opt Outs from the

Settlement Class in accordance with the Court’s orders.

2. For purposes of preliminary approval, this Court assesses the Settlement under Fed.

R. Civ. P. 23(e). Under Rule 23(e)(1)(B), the Court “must direct notice in a reasonable manner”

to proposed Settlement Class Members “if giving notice is justified by the parties’ showing that

the court will likely be able to (i) approve the proposal [as fair, reasonable, and adequate] under

Rule 23(e)(2); and (ii) certify the class for purposes of judgment on the proposal.” Fed. R. Civ. P.

23(e)(1)(B).

Likely Approval as Fair, Reasonable and Adequate

3. To determine whether the Settlement is fair, reasonable and adequate, Rule 23(e)(2)

directs the Court to consider whether:

(A) the class representatives and class counsel have adequately represented the

class; (B) the proposal was negotiated at arm’s length; (C) the relief provided for

the class is adequate, taking into account: (i) the costs, risks, and delay of trial and


3

appeal; (ii) the effectiveness of any proposed method of distributing relief to the

class, including the method of processing class-member claims; (iii) the terms of

any proposed award of attorney’s fees, including timing of payment; and (iv) any

agreement required to be identified under Rule 23(e)(3); and (D) the proposal treats

class members equitably relative to each other.

Fed. R. Civ. P. 23(e)(2).

4. The Settlement Class representatives proposed in the First Amended Complaint are

adequately representing the proposed Settlement Class: they share the same alleged injury (that

they allegedly paid 2020 Conference Fees and therefore suffered damages when the HIMSS 2020

Conference was cancelled) and the same interest (maximizing its recovery related to the

cancellation of the HIMSS 2020 Conference). Peyton J. Healey, Esq. of Hedrick Kring, PLLC is

also adequately representing the proposed Settlement Class.

5. There is no question that the Parties are at arm’s length. The Settlement appears to

be the result of extensive, non-collusive, arm’s-length negotiations between experienced counsel

who were thoroughly informed of the strengths and weaknesses of the case through mediation-

related discovery and whose negotiations were supervised by respected class-action mediator the

Honorable Wayne R. Andersen (Ret.).

6. The Settlement provides adequate relief to the proposed Settlement Class. As part

of the Settlement and without Settlement Class Members taking any action, Settlement Class

Members are entitled to a credit equal to fifty percent (50%) of their 2020 Conference Fees that

can be used toward fees for exhibition space, meeting space and/or sponsorships at the HIMSS

2021 Conference and that will be applied to the account of the Settlement Class Member upon

execution of a contract to attend the HIMSS 2021 Conference (less any sums already credited) and

a credit equal to ten percent (10%) of their 2020 Conference Fees that can be used toward fees for

exhibition space, meeting space and/or sponsorships at the HIMSS 2022 Conference and that will

be applied to the account of the Settlement Class Member upon execution of a contract to attend


4

the HIMSS 2022 Conference (less any sums already credited) (the “Credit-Only Option”). If

Settlement Class Members instead prefer a cash payment equal to twenty percent (20%) of their

2020 Conference Fees (less any sums already paid by HIMSS to a particular Settlement Class in

connection with its 2020 Conference Fees), a credit equal to thirty percent (30%) of their 2020

Conference Fees that can be used toward fees for exhibition space, meeting space and/or

sponsorships at the HIMSS 2021 Conference and that will be applied to the account of the

Settlement Class Member upon execution of a contract to attend the HIMSS 2021 Conference (less

any sums already credited) and a credit equal to ten percent (10%) of their 2020 Conference Fees

that can be used toward fees for exhibition space, meeting space and/or sponsorships at the HIMSS

2022 Conference and that will be applied to the account of the Settlement Class Member upon

execution of a contract to attend the HIMSS 2022 Conference (less any sums already credited) (the

“Cash/Credit Option”), the Settlement gives them the option to instead request such relief and

receive the cash payment from a $2.8 million Cash Fund to be paid by HIMSS. In light of the

costs, risks and delay of trial and appeal, this compensation is at least adequate for purposes of

Rule 23(e)(1). If this Settlement had not been reached, the Parties planned to vigorously contest

HIMSS’ expected motion dismiss as well as class certification, and Plaintiffs’ chances at trial also

would have been uncertain.

7. There is no reason to doubt the effectiveness of distributing relief under this

Settlement. As further addressed below, the Parties propose a Notice Program reasonably

calculated to reach nearly all members of the proposed Settlement Class, that will be able to submit

claims for the Cash/Credit Option online or by mail. Members of the proposed Settlement Class

will otherwise receive the Credit-Only option without the need to take any action.


5

8. This Court will fully assess the request of Class Counsel for Attorneys’ Fees and

Expenses after receiving its motion supporting such request. At this stage, the Court finds that the

plan to request fees to be paid from the Cash Fund creates no reason not to direct notice to the

proposed Settlement Class. In particular, should the Court find any aspect of the requested

Attorneys’ Fees and Expenses unsupported or unwarranted, such funds would not be returned to

HIMSS, and therefore the Settlement Class would not be prejudiced by directing notice at this

time.

9. No agreements exist between the Parties aside from those referred to in the

Settlement, including certain terms that permit HIMSS to communicate with Settlement Class

Members after Preliminary Approval in certain circumstances. Specifically, the Parties have

agreed, and Plaintiffs and Class Counsel expressly consent, that HIMSS shall be entitled to

communicate on an individual basis with Settlement Class Members following Preliminary

Approval, notwithstanding the preliminary or ultimate final certification of the Settlement Class

or any other class, in order to prepare for the HIMSS 2021 Conference, negotiate the attendance

of Settlement Class Members at the HIMSS 2021 Conference and related contracts and payments

and enter into individual settlement agreements and/or releases with individual Settlement Class

Members related to the Released Claims or the HIMSS 2020 Conference.

10. The Settlement treats members of the proposed Settlement Class equitably relative

to each other because all members of the proposed Settlement Class may select from the same

options: the Credit-Only Option or the Cash/Credit Option. The credits and cash payments would

be based on the cost of each member’s 2020 Conference Fees. These are equitable terms.

11. Having thoroughly reviewed the Settlement Agreement, the supporting exhibits and

the Settling Parties’ arguments, this Court finds that the Settlement is fair, reasonable and adequate


6

to warrant providing notice to the Settlement Class, and thus likely to be approved, subject to

further consideration at the Final Approval Hearing to be conducted as described below.

Likely Certification of Settlement Class

12. The Court assesses the likelihood that it will be able to certify the proposed

Settlement Class under Rules 23(a) and 23(b)(3) (because this Settlement Class seeks damages).

See Fed. R. Civ. P. 23(a)-(b). The Court makes this assessment for the purposes of Settlement

only at this time.

13. The proposed Class is sufficiently numerous under Rule 23(a)(1) because over 850

entities paid 2020 Conference Fees and have not already settled and/or released their claims, all of

which would be members of the Settlement Class.

14. Resolution of the Litigation would depend on the common answers to common

questions, such as whether HIMSS was permitted to cancel the HIMSS 2020 Conference and

whether HIMSS could avoid repaying 2020 Conference Fees based on an event of force majeure,

namely, the COVID-19 pandemic.

15. Plaintiffs’ claims are typical of the claims of the members of the proposed

Settlement Class because they challenge the same conduct -- HIMSS’ cancellation of the HIMSS

2020 Conference -- and make the same legal arguments. Typicality under Rule 23(a)(3) is

satisfied.

16. The proposed Settlement Class representative and Class Counsel will fairly and

adequately protect the interests of the proposed Settlement Class.

17. At least for purposes of settlement, the common issues in the Litigation

predominate over individual issues under Rule 23(b)(3). Key elements of Plaintiffs’ claims are

the payment of 2020 Conference Fees to HIMSS, the cancellation of the HIMSS 2020 Conference

and the alleged failure on the part of HIMSS to repay the 2020 Conference Fees.


7

18. This Settlement would be superior under Rule 23(b)(3) to many individual actions.

Many members of the proposed Settlement Class may not have suffered sufficient damages to

justify the costs of expensive litigation. And if the members of the proposed Settlement Class with

higher potential damages won significant verdicts, they might deprive remaining Class Members

of compensation. The Settlement ensures that all Settlement Class Members will have the

opportunity to be compensated through credits and/or cash payments.

19. For these reasons, pursuant to Rule 23, and for settlement purposes only, the Court

finds it will likely certify the Settlement Class defined above in paragraph 1 of this Order. This

finding is subject to further consideration at the Final Approval Hearing to be conducted as

described below.

20. The Court hereby preliminarily appoints the Plaintiffs as representatives of the

Settlement Class. Pursuant to Fed. R. Civ. P. 23(g), the Court hereby preliminarily appoints Peyton

J. Healey, Esq. of Hedrick Kring, PLLC as Class Counsel for the Settlement Class.

21. In any final approval order issued after the Final Approval Hearing, the Court will

bar and permanently enjoin all Settlement Class Members that have not been properly excluded

from the Settlement Class from (a) filing, commencing, prosecuting, intervening in or participating

(as class members or otherwise) in any other lawsuit or administrative, regulatory, arbitration or

other proceeding in any jurisdiction based on, relating to or arising out of the claims and causes of

action or the facts and circumstances giving rise to the Litigation or the Released Claims and

(b) organizing Settlement Class Members that have not been excluded from the class into a

separate class for purposes of pursuing as a purported class action any lawsuit or arbitration or

other proceeding (including by seeking to amend a pending complaint to include class allegations

or seeking class certification in a pending action) based on, relating to or arising out of the claims


8

and causes of action or the facts and circumstances giving rise to the Litigation or the Released

Claims, except that Settlement Class Members are not precluded from participating in any

investigation or suit initiated by a state or federal agency.

Approval of the Manner and Form of Notice

22. Having preliminarily approved the Settlement, the Court “must direct notice in a

reasonable manner to all class members who would be bound by the proposal.” Fed. R. Civ.

P. 23(e)(1)(B). The Parties have submitted three proposed forms of Class Notice: a Mailed Notice

(including a Claim Form), an Emailed Notice and a Published Notice, which are attached to

Plaintiffs’ Memorandum in Support of its Motion as Exhibits A-2, A-3 and A-4. Under the terms

of the Settlement Agreement and as detailed in these exhibits and the Motion, the Parties propose

to send by First-Class Mail, postage prepaid, the Mailed Notice (including a Claim Form) to each

individual Settlement Class Member at their last known address as provided to HIMSS upon

registration for the HIMSS 2020 Conference or at an alternative, readily-ascertainable address by

First-Class Mail, postage prepaid. The Parties also propose to email the Emailed Notice to each

individual Settlement Class Member at the email address (if any) which they provided to HIMSS

upon registration for the HIMSS 2020 Conference or at an alternative, readily-ascertainable email

address if available. In addition, HIMSS, as the Settlement Administrator, will create a Settlement

Webpage where the Published Notice and Claim Form will be available.

23. Having reviewed these exhibits, the Court finds that the Parties’ proposed plan for

providing notice to Settlement Class Members (a) is reasonable and constitutes due, adequate and

sufficient notice to all Persons entitled to receive notice, (b) is reasonably calculated, under the

circumstances, to apprise the Settlement Class of the pendency of the Litigation and of their right

to object to or to exclude themselves from the Settlement and (c) meets all applicable requirements

of applicable law. The Notice Program satisfies the requirements of Fed. R. Civ. P. 23(c)(2)(B)


9

and due process. The Court therefore approves the Notice Program and the notice documents

substantially in the form attached as the exhibits to Plaintiffs’ Motion.

24. HIMSS has been selected to serve as the Settlement Administrator under the terms

of the Settlement. The Court hereby appoints HIMSS to serve as the Settlement Administrator to

be supervised jointly by Class Counsel, Plaintiffs and Defense Counsel in taking the actions

ordered below and performing any other duties of the Settlement Administrator provided for in the

Settlement Agreement.

25. Accordingly, the Court hereby ORDERS as follows:

a. Promptly after the entry of this Order, the Settlement Administrator will

issue Class Notice and administer the Notice Program, receive and appropriately

respond to all claims submitted by a member of the Settlement Class and otherwise

administer the Settlement Agreement.

b. The Settlement Administrator will (1) assign personnel to manage the

settlement implementation process, including the Notice Program, (2) establish a toll-

free telephone number that members of the Class may call to obtain information, (3)

establish an email address and a mailing address to which members of the Settlement

Class can send claims and (4) create a Settlement Webpage containing information

about the Settlement, including the Published Notice and the Claim Form for download

or electronic submission.

c. No later than thirty (30) days following the entry of this Order, and

sooner if practicable, the Settlement Administrator will mail the Court-approved

Mailed Notice (Exhibit A-2) (including a Claim Form, Exhibit A-3), to all potential

Settlement Class Members at their last known address as provided to HIMSS upon


10

registration for the HIMSS 2020 Conference or at an alternative, readily-ascertainable

address by First-Class Mail, postage prepaid.

d. No later than thirty (30) days following the entry of this Order, and

sooner if practicable, the Settlement Administrator shall email or cause to be emailed

the Emailed Notice to all potential Settlement Class Members at the email address (if

any) which they provided to HIMSS upon registration for the HIMSS 2020 Conference

or at an alternative, readily-ascertainable email address if available.

e. The Settlement Administrator will forward notices that are returned by

the United States Postal Service with a forwarding address. Following receipt of any

returned notices that do not include a forwarding address, the Settlement Administrator

shall as soon as practicable (itself or through an appropriate vendor) research such

returned mail for more accurate addresses and promptly mail copies of the applicable

notice to any more accurate addresses so found.

f. Within fourteen (14) Days of the entry of this Order, the Settlement

Administrator will cause the Settlement Webpage located on www.himss.org to be

updated to provide information and relevant documents related to this Settlement,

including but not limited to, the following: applicable deadlines; Published Notice;

Mailed Notice; Emailed Notice; orders of the Court pertaining to the Settlement; this

Settlement Agreement; and contact addresses for questions. The Settlement Webpage

shall be rendered inactive thirty (30) Days after the Effective Date. Class Counsel and

Defense Counsel shall agree on all information and documents to be posted on the

Settlement Webpage.


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g. As appropriate, Class Counsel and/or HIMSS shall provide an affidavit

to the Court attesting to the Notice Program and all measures undertaken to provide

notice of the Settlement to the Settlement Class no later than twenty-one (21) Days

before the Final Approval Hearing.

h. The Settlement Administrator shall receive, evaluate and either approve

or disapprove Claim Forms under the requirements of the Settlement. The Settlement

Administrator shall send a notice of claim denial by First-Class Mail to each Settlement

Class Member that submitted a Claim Form that the Settlement Administrator

determines not to be a valid claim. The Settlement Administrator shall not review or

pay any claims for monetary compensation submitted by a member of the Settlement

Class after the Claim Deadline.

i. The Settlement Administrator shall forward any objections to the

Settlement received from Settlement Class Members to Class Counsel and Defense

Counsel.

j. The Settlement Administrator shall provide the Opt-Out List together

with copies of each Request for Exclusion to Class Counsel and Defense Counsel not

later than seven (7) business Days after the deadline for submission of Requests for

Exclusion. Class Counsel and Defense Counsel shall submit the names appearing on

the Opt-Out List to the Court under seal at the time of the Final Approval Hearing.

Participation in, Exclusion from or Objection to the Settlement

26. Each form described in this section shall be deemed to be submitted when

postmarked or when electronically received by the Settlement Administrator if submitted

electronically.


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27. Settlement Class Members that wish to receive the Cash/Credit Option under the

Settlement must properly and timely complete, sign and submit a Claim Form in accordance with

the instructions contained therein. All Claim Forms must be submitted no later than sixty (60)

Days after the Notice Date.

28. Settlement Class Members that wish to exclude themselves from (i.e., opt out of)

the Settlement must send a Request for Exclusion that:

a. Has the signature of the member of the Settlement Class, even if represented

by counsel. If the member of the Settlement Class is an entity and not an

individual, the Request for Exclusion must be signed by an officer or

director of the entity with authority to act on behalf of that entity. If the

Settlement Class Member is represented by counsel, the Request for

Exclusion shall also be signed by that attorney;

b. States the name, address and telephone number of the Person requesting

exclusion; and

c. Contains a clear and unambiguous statement communicating that such

Person elects to be excluded from the Settlement Class, does not wish to be

a Settlement Class Member and elects to be excluded from any judgment

entered pursuant to the Settlement.

29. A member of the Settlement Class may opt out on an individual basis only; so-

called “mass” or “class” opt outs shall not be allowed.

30. All Requests for Exclusion must be submitted no later than forty-five (45) Days

after the Notice Date. Any member of the Settlement Class that submits a timely Request for


13

Exclusion may not file an objection to the Settlement and shall be deemed to have waived any

rights or benefits under this Settlement Agreement.

31. Any Settlement Class Member that fails to submit a timely and complete Request

for Exclusion sent to the proper address shall be subject to and bound by this Settlement and every

order or judgment entered pursuant to this Settlement. Any purported Request for Exclusion or

other communication sent to such address that is unclear or internally inconsistent with respect to

the Settlement Class Member’s desire to be excluded from the Settlement Class will be deemed

invalid unless determined otherwise by the Court. Requests for Exclusion signed only by counsel

or another representative shall not be permitted.

32. Any Settlement Class Member that wishes to be heard at the Final Approval

Hearing, or that wishes for any objection to be considered, must file with the Clerk of the Court a

written notice of objection, including any request to be heard, no later than forty-five (45) Days

after the Notice Date. Such objection must:

a. Have the signature of the member of the Settlement Class objecting, even if

represented by counsel. If the member of the Settlement Class is an entity

and not an individual, the objection must be signed by an officer or director

of the entity with authority to act on behalf of that entity. If the Settlement

Class Member that is objecting to the Settlement is represented by counsel,

the objection shall also be signed by that attorney,

b. State the name, address and telephone number of the Person objecting,

c. State the name, address and telephone number of every attorney

representing or assisting the objector,


14

d. Contain a detailed statement of each objection asserted, including the

grounds for objection and reasons for appearing and being heard, together

with any documents such Person wishes to be considered in support of the

objection,

e. Contain a list of all cases in which the Person objecting or the Person’s

counsel filed or in any way participated -- financially or otherwise --

objecting to a class settlement during the preceding five years; and

f. Contain a statement regarding whether the Person objecting intends to

appear at the Final Approval Hearing, either with or without counsel, and a

list of all persons, if any, who will be called to testify in support of the

objection.

33. The Settlement Class Member must also serve by mail or hand delivery his or her

notice of objection, including any request to be heard, including all papers or evidence in support

thereof, upon one of the Class Counsel and Defense Counsel, at the addresses set forth in the Class

Notice.

34. Objectors that fail to properly or timely file their objections with the Clerk of the

Court, along with the required information and documentation set forth above, or to serve them as

provided above, shall not be heard during the Final Approval Hearing, shall not have their

objections be considered by the Court and shall be foreclosed from seeking any adjudication or

review of the Settlement by appeal or otherwise.

35. Class Counsel and Defense Counsel may respond to any objection filed by a

Settlement Class Member, and must file such a response with the Court no later than fourteen (14)

Days prior to the Final Approval Hearing.


15

36. Settlement Class Members may not both object and opt out. If a Class Member

submits both a Request for Exclusion and an objection, the Request for Exclusion shall be

controlling.

37. Any Settlement Class Member that does not file a timely, written objection to the

Settlement or that fails to otherwise comply with the requirements outline above in paragraphs 26-

36 shall be foreclosed from seeking any adjudication or review of this Settlement by appeal or

otherwise.

Final Approval Hearing and Related Deadlines

38. This Court will hold a Final Approval Hearing on ___________________ in the

United States District Court for the Northern District of Illinois, Courtroom 1425, 219 South

Dearborn Street Chicago, Illinois 60604 or by remote or virtual means as ordered by the Court.

The purposes of the Final Approval Hearing will be to consider the fairness, reasonableness and

adequacy of the proposed Settlement and the application for an award of Attorneys’ Fees and

Expenses, and to consider whether the Court should issue a Final Order and Judgment approving

the Settlement, granting Class Counsel’s application for fees and expenses, granting the Service

Awards application of Plaintiffs and dismissing the claims against HIMSS with prejudice.

39. The Court reserves the right to adjourn the Final Approval Hearing without further

notice to Settlement Class Members, or to approve the Settlement with modification without

further notice to Settlement Class Members.

40. Any Settlement Class Member may appear at the Final Approval Hearing by filing

with the Clerk of the Court a written notice of objection no later than forty-five (45) Days after the

Notice Date in accordance with the requirements outlined in paragraph 32-34 above and including

a statement that he or she intends to appear at the Final Approval Hearing, either with or without


16

counsel, along with a list of all Persons, if any, that will be called to testify in support of the

objection.

41. If any Settlement Class Member hires an attorney to represent the Settlement Class

Member at the Fairness Hearing, that attorney will be at the Settlement Class Member’s expense.

42. Any attorney hired by a Settlement Class Member for the purpose of objecting to

the Settlement and who intends to make an appearance at the Final Approval Hearing must provide

to Class Counsel and Defense Counsel and to file with the Clerk of the Court a notice of intention

to appear no later than forty-five (45) Days after the Notice Date.

43. Class Counsel’s papers in support of any application for Attorneys’ Fees and

Expenses and/or Service Awards shall be filed by the Notice Date. If any reply papers are

necessary, they shall be filed no later than fourteen (14) Days prior to the Final Approval Hearing.

44. Class Counsel’s papers in support of final approval of the Settlement shall be filed

no later than sixty (60) Days from the Notice Date. If any reply papers are necessary, they shall

be filed no later than seven (7) Days prior to the Final Approval Hearing.

Effects of this Preliminary Approval Order

45. If for any reason the Settlement fails to become effective in accordance with its

terms, or if the judgment is not entered or is reversed, vacated or materially modified on appeal

(and, in the event of material modification (which shall not include any modification to an award

of Attorneys’ Fees and Expenses or to the Service Awards), if either party elects to terminate the

Settlement), this Order shall be null and void, the Settlement Agreement shall be deemed

terminated (except for any paragraphs that, pursuant to the terms of the Settlement, survive

termination of the Settlement), and the Settling Parties shall return to their positions without

prejudice in any way, as provided for in the Settlement.


17

46. As set forth in the Settlement, the fact and terms of this Order and the Settlement,

all negotiations, discussions, drafts, and proceedings in connection with this Order and the

Settlement, and any act performed or document signed in connection with this Order and the

Settlement, shall not, in this or any other court, administrative agency, arbitration forum or other

tribunal, constitute an admission or evidence or be deemed to create any inference against any

party, including, but not limited to: (i) of any acts of wrongdoing or lack of wrongdoing; (ii) of

any liability on the part of HIMSS to the Plaintiffs, the Settlement Class or anyone else; (iii) of

any deficiency of any claim or defense that has been or could have been asserted in this case;

(iv) that HIMSS agrees that a litigation class may be properly certified in this case; (v) of any

damages or lack of damages suffered by the Plaintiffs, the Settlement Class or anyone else; or

(vi) that any benefits obtained by the Settlement Class pursuant to the Settlement or any other

amount represents the amount that could or would have been recovered in the actions in this case

if they were not settled at this point in time. The fact and terms of this Order and the Settlement,

all negotiations, discussions, drafts and proceedings in connection with this Order and the

Settlement, including but not limited to the judgment and the release of the Released Claims

provided for in the Settlement and any judgment, shall not be offered or received in evidence or

used for any other purpose in this or any other proceeding in any court, administrative agency,

arbitration forum or other tribunal, except as necessary to enforce the terms of this Order and/or

the Settlement.

47. All members of the Settlement Class unless and until they have timely and properly

excluded themselves from the Settlement Class are preliminarily enjoined from (a) filing,

commencing, prosecuting, intervening in or participating as plaintiff, claimant, participant or class

member in any other lawsuit or administrative, regulatory, arbitration or other proceeding in any


18

jurisdiction based on, relating to or arising out of the claims and causes of action or the facts and

circumstances giving rise to the Litigation or the Released Claims; (b) filing, commencing,

participating in or prosecuting a lawsuit or administrative, regulatory, arbitration or other

proceeding as a class action on behalf of any member of the Settlement Class that has not timely

excluded himself or herself (including by seeking to amend a pending complaint to include class

allegations or seeking class certification in a pending action), based on, relating to or arising out

of the claims and causes of action or the facts and circumstances giving rise to the Litigation or

the Released Claims; and (c) attempting to effect opt outs of a class of individuals in this lawsuit

or any other lawsuit or administrative, regulatory, arbitration or other proceeding based on, relating

to or arising out of the claims and causes of action or the facts and circumstances giving rise to the

Litigation or the Released Claims.

48. Any member of the Settlement Class that does not submit a timely, written Request

for Exclusion from the Settlement Class (i.e., become an Opt Out) will be bound by all

proceedings, orders and judgments in the Litigation, even if such Settlement Class Member has

previously initiated or subsequently initiates individual litigation or other proceedings

encompassed by the Release.

Dated: __________________________ /s/

Martha M. Pacold

United States District Judge


EXHIBIT A-2


Questions? Visit ______________ or call toll-free _______________

LEGAL NOTICE BY ORDER OF THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS

HIMSS 2020 CONFERENCE SETTLEMENT

If you paid fees to Healthcare Information and Management Systems Society (“HIMSS”)

for exhibition space, meeting space and/or sponsorships at the HIMSS 2020 Global Health Conference & Exhibition scheduled to take place in Orlando, Florida from March 9–March 13, 2020 (“HIMSS 2020 Conference”), you may be entitled to a cash

payment or other relief from a proposed class action settlement.

Para ver este aviso en español, visite ______________________.

A proposed settlement (“Settlement”) has been reached in a lawsuit against HIMSS. The lawsuit claimed

that class members paid fees for exhibition space, meeting space and/or sponsorships at the HIMSS 2020

Conference (“2020 Conference Fees”), that the HIMSS 2020 Conference was cancelled on or about March 5,

2020 due to the COVID-19 pandemic, and that class members suffered damages and are entitled to relief as

a result. HIMSS denies these allegations. If approved by the Court, the Settlement resolves the case and

provides benefits to Settlement Class Members that do not exclude themselves, including the option of a

cash payment to Settlement Class Members that submit valid claims. This notice is only a summary. For

more information, visit ________________ or call ______________.

Who is included?

You may be a Settlement Class Member if you paid 2020 Conference Fees to HIMSS.

What can I get?

The proposed Settlement creates a common fund of $2.8 million to pay approved claims made by Settlement

Class Members.

If you paid 2020 Conference Fees to HIMSS, you may be eligible to receive a credit equal to fifty percent

(50%) of your 2020 Conference Fees that can be used toward fees for exhibition space, meeting space and/or

sponsorships at the HIMSS Global Health Conference & Exhibition scheduled to occur in 2021 (“HIMSS 2021

Conference”) and that will be applied to your account upon execution of a contract to attend the HIMSS 2021

Conference (less any sums already credited) and a credit equal to ten percent (10%) of your 2020 Conference

Fees that can be used toward fees for exhibition space, meeting space and/or sponsorships at the HIMSS

Global Health Conference & Exhibition scheduled to occur in 2022 (“HIMSS 2022 Conference”) and that will

be applied your account upon execution of a contract to attend the HIMSS 2022 Conference (less any sums

already credited). This option is referred to as the “Credit-Only Option.” To receive this Credit-Only

Option, you are not required to do anything.

If you paid 2020 Conference Fees to HIMSS, you may instead be eligible to receive a cash payment equal to

twenty percent (20%) of your 2020 Conference Fees (less any sums already paid to you by HIMSS in

connection with your 2020 Conference Fees), a credit equal to thirty percent (30%) of your 2020 Conference

Fees that can be used toward fees for exhibition space, meeting space and/or sponsorships at the HIMSS

2021 Conference and that will be applied to your account upon execution of a contract to attend the HIMSS

2021 Conference (less any sums already credited) and a credit equal to ten percent (10%) of your 2020

Conference Fees that can be used toward fees for exhibition space, meeting space and/or sponsorships at

the HIMSS 2022 Conference and that will be applied to your account upon execution of a contract to attend

the HIMSS 2022 Conference (less any sums already credited). This option is referred to as the “Cash/Credit

Option.” To be eligible to receive this Cash/Credit Option instead of the Credit-Only Option, you

must submit a Claim Form by ____________, 2021. A Claim Form is attached to this Notice, but you

may also file a claim online at ___________________. If you have any questions about the Claim Form or

how to file a claim, call _________________ or email ________________.

Notwithstanding the foregoing, if the date the Settlement becomes effective (i.e., the Effective Date) does

not occur until after the first day of the HIMSS 2021 Conference, and you and HIMSS have not yet separately

agreed that the credit provided in connection with the HIMSS 2020 Conference shall remain available for use

toward exhibition space, meeting space and/or sponsorships at the HIMSS 2021 Conference (less any sums

already credited), then the credits provided for use toward exhibition space, meeting space and/or

sponsorships at the HIMSS 2021 Conference shall instead be available for use toward exhibition space,

meeting space and/or sponsorships at the HIMSS 2022 Conference and will be applied to your account upon



execution of a contract to attend the HIMSS 2022 Conference (less any sums already credited), and the

credits provided for use toward exhibition space, meeting space and/or sponsorships at the HIMSS 2022

Conference shall instead be available for use toward exhibition space, meeting space and/or sponsorships at

the HIMSS 2023 Conference and will be applied to the your account upon execution of a contract to attend

the HIMSS 2023 Conference (less any sums already credited).

What are my options?

If you paid 2020 Conference Fees to HIMSS, you can (1) do nothing and receive the Credit-Only

Option, (2) submit a Claim Form by _____, 2021 to instead receive the Cash/Credit Option,

(3) exclude yourself by ________, 2021 or (4) object to the Settlement by _______, 2021.

If you do not exclude yourself, and the Court approves the Settlement, you will be bound by the Court’s

orders and judgments and will release your claims against HIMSS (including any that you have already

initiated in any proceeding), even if you do not file a claim. For information on how to exclude yourself, object

or file a claim, visit __________ or call _____________. The Court will hold a Final Approval Hearing on

__________, 2021 to decide whether to approve the Settlement. You may attend this hearing, but you do

not have to. The time and date of this hearing may change without further notice to the Settlement Class,

so please check the website for updates.

What happens next?

The Court, located in Chicago, Illinois, will hold a hearing on ____________, 2021 at _____ (or such other

date as set by the Court) to decide whether to approve the Settlement, including how much to pay Class

Counsel for their work in representing the Settlement Class (not more than $1 million to be paid out of the

Cash Fund) and what Service Award, if any, should be given to the Named Plaintiffs. The Named Plaintiffs

will ask the Court to award them $8,860.00 (eight thousand eight hundred sixty dollars) to Plaintiff HatchMed

Corp. and $30,660.00 (thirty thousand six hundred sixty dollars) to Plaintiff Novarad Corporation. You or

your attorney may ask permission to speak at the hearing at your own cost. The date and time of this

hearing may change without further notice to the Settlement Class. Please check __________________ for

updates.

Who represents me?

The Court has appointed Peyton J. Healey, Esq. of Hedrick Kring, PLLC to represent you as Class Counsel. You

will not be charged for this lawyer. If you want to be represented by your own lawyer, you may hire one at

your own expense. Hedrick Kring, PLLC may be contacted at 1700 Pacific Avenue, Suite 4650, Dallas, Texas

75201 or (214) 880-9600.

How do I get more information?

For more information, including the Emailed Notice, Mailed Notice, Published Notice, Claim Form, and Motions

for Approval of Attorneys’ Fees and Settlement Agreement, call _____________ or visit _______________.


EXHIBIT A-3



HIMSS 2020 CONFERENCE SETTLEMENT CLAIM FORM

I. INSTRUCTIONS

You can submit this form by mail to _________________________________, or you can file claims online at _____________________. The deadline to submit or postmark a claim is __________, 2021.

Please carefully read the Class Notice (available at __________________) regarding the Settlement before filling out this form. Terms in this Claim Form are defined in the Class Notice and/or the Settlement Agreement, both of which are available at the Settlement Website (________________), or by calling __________ or emailing _______________.

II. AVAILABLE OPTIONS

If you paid fees to Healthcare Information and Management Systems Society (“HIMSS”) for exhibition space, meeting space and/or sponsorships at the HIMSS 2020 Conference scheduled to take place in Orlando, Florida from March 9–March 13, 2020 (“2020 Conference Fees”), you may be eligible to receive a credit equal to fifty percent (50%) of your 2020 Conference Fees that can be used toward fees for exhibition space, meeting space and/or sponsorships at the HIMSS Global Health Conference & Exhibition scheduled to occur in 2021 (“HIMSS 2021 Conference”) and that will be applied to your account upon execution of a contract to attend the HIMSS 2021 Conference (less any sums already credited) and a credit equal to ten percent (10%) of your 2020 Conference Fees that can be used toward fees for exhibition space, meeting space and/or sponsorships at the HIMSS Global Health Conference & Exhibition scheduled to occur in 2022 (“HIMSS 2022 Conference”) and that will be applied to your account upon execution of a contract to attend the HIMSS 2022 Conference (less any sums already credited). To receive this benefit, you are not required to do anything.

If you would instead prefer a cash payment equal to twenty percent (20%) of your 2020 Conference Fees (less any sums already paid to you by HIMSS in connection with your 2020 Conference Fees), a credit equal to thirty percent (30%) of your 2020 Conference Fees that can be used toward fees for exhibition space, meeting space and/or sponsorships at the HIMSS 2021 Conference and that will be applied to your account upon execution of a contract to attend the HIMSS 2021 Conference (less any sums already credited) and a credit equal to ten percent (10%) of your 2020 Conference Fees that can be used toward fees for exhibition space, meeting space and/or sponsorships at the HIMSS 2022 Conference and that will be applied to your account upon execution of a contract to attend the HIMSS 2022 Conference (less any sums already credited), you must complete, sign and submit this form by ____________, 2021 to be eligible.

III. CLAIMANT CONTACT INFORMATION

Full Name of Settlement Class Member Email Address Used With HIMSS

Mailing Address City

State Zip Code Telephone Number



2

IV. CLAIM CERTIFICATION AND RELEASE

I have received notice of the Settlement, and I submit this Claim Form under the terms of the Settlement. I acknowledge that I am bound by any Court judgment that may be entered in this lawsuit and, upon the Effective Date of the Settlement, will release claims against HIMSS as set forth in the Settlement Agreement. I submit to the jurisdiction of the United States District Court for the Northern District of Illinois with regard to my claim and for purposes of enforcing the release of claims. I acknowledge that all claims are subject to investigation, and any false claims may be subject to legal action. I verify that I am a member of the Settlement Class or the authorized representative of an entity that is a member of the Settlement Class.

I certify under penalty of perjury that all of the foregoing information is true and correct.

________________________________________ Signature of Claimant or Claimant’s Authorized Representative

Date


EXHIBIT A-4


Questions? Call toll-free _____________ or visit __________________________.

1

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS

If you paid fees to Healthcare Information and Management Systems Society (“HIMSS”)

for exhibition space, meeting space and/or sponsorships at the HIMSS 2020 Global

Health Conference & Exhibition scheduled to take place in Orlando, Florida from March

9–March 13, 2020 (“HIMSS 2020 Conference”), you may be entitled to a cash payment

or other relief from a proposed class action settlement.

Esta Notificación de arreglo colectivo está disponible en español.

Visite el siguiente sitio web: ________________

A federal court authorized this Notice. It is not a solicitation from a lawyer.

Your legal rights are affected whether you act or do not act. Please read this notice carefully.

YOUR LEGAL RIGHTS AND OPTIONS IN THIS SETTLEMENT

SUBMIT A

CLAIM FORM

If you paid fees for exhibition space, meeting space and/or sponsorships at the HIMSS 2020

Conference (“2020 Conference Fees”), you must submit a Claim Form in order to be eligible

for a cash payment equal to twenty percent (20%) of your 2020 Conference Fees (less any

sums already paid to you by HIMSS in connection with your 2020 Conference Fees), a credit

equal to thirty percent (30%) of your 2020 Conference Fees that can be used toward fees for

exhibition space, meeting space and/or sponsorships at the HIMSS Global Health Conference

& Exhibition scheduled to occur in 2021 (“HIMSS 2021 Conference”) and that will be

applied to your account upon execution of a contract to attend the HIMSS 2021 Conference

(less any sums already credited) and a credit equal to ten percent (10%) of your 2020

Conference Fees that can be used toward fees for exhibition space, meeting space and/or

sponsorships at the HIMSS Global Health Conference & Exhibition scheduled to occur in

2022 (“HIMSS 2022 Conference”) and that will be applied to your account upon execution

of a contract to attend the HIMSS 2022 Conference (less any sums already credited). Claim

Forms must be submitted online or postmarked by ________, 2021.

EXCLUDE

YOURSELF

(OPT OUT)

Get no cash payment or credit. This is the only option that allows you to ever be part of any

other lawsuit against HIMSS about the legal claims in this case. Requests for Exclusion must

be postmarked by __________, 2021.

OBJECT OR

COMMENT

Write to the Court about why you do not like the Settlement. The deadline to file and serve

an objection is __________, 2021.

GO TO A

HEARING

Ask to speak in Court about why you do not support the proposed Settlement or any of its

provisions. The Final Approval Hearing will be held on ___________, 2021.

DO NOTHING

NOW

If you paid 2020 Conference Fees, you will automatically be eligible to receive a credit equal

to fifty percent (50%) of your 2020 Conference Fees that can be used toward fees for

exhibition space, meeting space and/or sponsorships at the HIMSS 2021 Conference and that

will be applied to your account upon execution of a contract to attend the HIMSS 2021

Conference (less any sums already credited) and a credit equal to ten percent (10%) of your

2020 Conference Fees that can be used toward fees for exhibition space, meeting space and/or

sponsorships at the HIMSS 2022 Conference and that will be applied to your account upon

execution of a contract to attend the HIMSS 2022 Conference (less any sums already

credited).

Doing nothing now, however, also means you give up any other rights.

These rights and options -- and the deadlines to exercise them -- are explained in this Notice.



2

The Court in charge of this case still has to decide whether to approve the Settlement. Payments will be made

and credits will be given under the Settlement Agreement if the Court approves the Settlement and after appeals

are resolved. Please be patient.

QUESTIONS? Read on, visit ____________________, or call ______________.

WHAT THIS NOTICE CONTAINS

BASIC INFORMATION ............................................................................................................... 3 1. Why did I receive a Notice?

2. What is this lawsuit about?

3. What is a class action?

4. Why is there a Settlement?

WHO IS IN THE SETTLEMENT ................................................................................................. 3 5. How do I know if I am part of the Settlement?

6. I am still not sure if I am included.

THE SETTLEMENT BENEFITS -- WHAT YOU GET ................................................................... 4 7. How can I get a payment?

8. When would I get my cash payment or credit?

9. What if Settlement Class Members claim more than $2.8 million?

10. What am I giving up to stay in the Settlement Class?

EXCLUDING YOURSELF FROM THE SETTLEMENT (OPTING OUT) ......................................... 5 11. How do I get out of the Settlement?

12. If I do not exclude myself, can I sue HIMSS for the same thing later?

13. If I exclude myself, can I get any of the benefits of the Settlement?

14. If I exclude myself, can I object to the Settlement?

15. If I do not submit a Request for Exclusion by __________ or I do not send it to the

address listed above, can I still exclude myself?

THE LAWYERS REPRESENTING YOU ....................................................................................... 6 16. Do I have a lawyer in the case?

17. How will the lawyers be paid?

OBJECTING TO THE SETTLEMENT .......................................................................................... 6 18. How do I tell the Court that I do not like the Settlement?

19. What is the difference between objecting and excluding?

20. If I do not submit an objection by _____ or I do not properly file and service, can I

still object to the Settlement?

THE COURT’S FINAL APPROVAL HEARING ............................................................................ 7 21. When and where will the Court decide whether to approve the Settlement?

22. Do I have to attend the hearing?

23. May I speak at the hearing?

IF YOU DO NOTHING ................................................................................................................. 8 24. What happens if I do nothing at all?

GETTING MORE INFORMATION ................................................................................................. 9 25. Are there more details about the Settlement?

26. How do I get more information?



3

BASIC INFORMATION

1. WHY DID I RECEIVE A NOTICE?

This notice has been approved by the Court and summarizes the proposed Settlement. For the precise terms and

conditions of the Settlement, please review the Settlement Agreement, available at ______________. Judge Martha

M. Pacold of the United States District Court for the Northern District of Illinois is overseeing this class action.

The lawsuit is known as HatchMed Corp., et al. v. Healthcare Information and Management Systems Society, Case

No. 1:20-cv-02486 (N.D. Ill.).

2. WHAT IS THIS LAWSUIT ABOUT?

The lawsuit claims that class members paid fees for exhibition space, meeting space and/or sponsorships at the

HIMSS 2020 Conference (“2020 Conference Fees”), that the HIMSS 2020 Conference was cancelled on or about

March 5, 2020 due to the COVID-19 pandemic, and that class members suffered damages and are entitled to relief

as a result. HIMSS denies all of the allegations in the lawsuit.

3. WHAT IS A CLASS ACTION?

In a class action lawsuit, one or more persons or entities called named plaintiffs sue on behalf of other persons and

entities that have similar claims. The people and entities together are a Class or Class Members. The company

they sued is called the Defendant. One court resolves the issues for everyone in the Class, except for those people

who choose to exclude themselves, or opt out, of the Class.

4. WHY IS THERE A SETTLEMENT?

The Court did not decide in favor of the Plaintiffs or HIMSS, the Defendant here. Instead, both sides agreed to a

Settlement. That way, they avoid the risk and cost of a trial, and the people affected will get compensation. The

Plaintiffs and Class Counsel believe the proposed Settlement confers substantial benefits on the Settlement Class

and have determined that the Settlement is in the best interest of the Settlement Class and represents a fair,

reasonable and adequate resolution of the lawsuit.

HIMSS denies the claims in the lawsuit; denies all allegations of wrongdoing, fault, liability or damage to the

Plaintiffs and the Settlement Class; and denies that it acted improperly or wrongfully in any way. HIMSS

nevertheless recognizes the expense and time that would be required to defend the lawsuit through trial and has

taken this into account in agreeing to this Settlement.

WHO IS IN THE SETTLEMENT

To see if you will get any of the benefits of this Settlement, you first have to decide if you are a Settlement Class

Member.

5. HOW DO I KNOW IF I AM PART OF THE SETTLEMENT?

The Court decided that everyone who fits this description and does not fall under the exclusions below is a

Settlement Class Member: All Persons that at any time prior to __________________________ paid 2020

Conference Fees and have not already settled and released their claim(s).

Excluded from the Settlement Class are: (1) HIMSS and its subsidiaries and affiliates, employees, officers,

directors, agents and representatives and their family members; (2) Class Counsel; (3) the judges who have

presided over the Litigation; and (4) all Persons that have timely elected to become Opt Outs from the Settlement

Class in accordance with the Court’s orders.

6. I AM STILL NOT SURE IF I AM INCLUDED.

If you are still unsure whether you are included, you can call or email the Settlement Administrator at

____________________ or ________________. HIMSS is the Settlement Administrator for the Settlement.



4

THE SETTLEMENT BENEFITS -- WHAT YOU GET

7. HOW CAN I GET A PAYMENT?

The proposed Settlement creates a common fund of $2.8 million to pay approved claims made by Settlement Class

Members.

If you paid 2020 Conference Fees to HIMSS, you may be eligible to receive a credit equal to fifty percent (50%)

of your 2020 Conference Fees that can be used toward fees for exhibition space, meeting space and/or sponsorships

at the HIMSS 2021 Conference and that will be applied to your account upon execution of a contract to attend the

HIMSS 2021 Conference (less any sums already credited) and a credit equal to ten percent (10%) of your 2020

Conference Fees that can be used toward fees for exhibition space, meeting space and/or sponsorships at the HIMSS

2022 Conference and that will be applied to your account upon execution of a contract to attend the HIMSS 2022

Conference (less any sums already credited). This option is referred to as the “Credit-Only Option.” To be entitled

to this Credit-Only Option, you are not required to do anything at this time.

If you paid 2020 Conference Fees to HIMSS, you may instead be eligible to receive a cash payment equal to twenty

percent (20%) of your 2020 Conference Fees (less any sums already paid to you by HIMSS in connection with your

2020 Conference Fees), a credit equal to thirty percent (30%) of your 2020 Conference Fees that can be used toward

fees for exhibition space, meeting space and/or sponsorships at the HIMSS 2021 Conference and that will be applied

to your account upon execution of a contract to attend the HIMSS 2021 Conference (less any sums already credited)

and a credit equal to ten percent (10%) of your 2020 Conference Fees that can be used toward fees for exhibition

space, meeting space and/or sponsorships at the HIMSS 2022 Conference and that will be applied to your account

upon execution of a contract to attend the HIMSS 2022 Conference (less any sums already credited). This option

is referred to as the “Cash/Credit Option.” To be eligible to receive this Cash/Credit Option instead of the

Credit-Only Option, you must submit a Claim Form by ____________, 2021. You should have received a

Claim Form in the mail together with a notice of the Settlement. The Claim Form is also available at

__________________. You may submit a claim by completing and signing that Claim Form and submitting it in

accordance with its instructions. You may submit a Claim Form by mail to ______________________. You may

also submit a Claim Form online at ___________________. If you have any questions about the Claim Form or

how to file a claim, call _________________ or email ________________. You may be asked for additional

information. Follow all instructions on the Claim Form and make sure to inform the Settlement Administrator of

any changes in your address after you have submitted your Claim Form.

Notwithstanding the foregoing, if the date the Settlement becomes effective (i.e., the Effective Date) does not occur

until after the first day of the HIMSS 2021 Conference, and you and HIMSS have not yet separately agreed that the

credit provided in connection with the HIMSS 2020 Conference shall remain available for use toward exhibition

space, meeting space and/or sponsorships at the HIMSS 2021 Conference (less any sums already credited), then

the credits provided for use toward exhibition space, meeting space and/or sponsorships at the HIMSS 2021

Conference shall instead be available for use toward exhibition space, meeting space and/or sponsorships at the

HIMSS 2022 Conference and will be applied to your account upon execution of a contract to attend the HIMSS

2022 Conference (less any sums already credited), and the credits provided for use toward exhibition space, meeting

space and/or sponsorships at the HIMSS 2022 Conference shall instead be available for use toward exhibition space,

meeting space and/or sponsorships at the HIMSS 2023 Conference and will be applied to the your account upon

execution of a contract to attend the HIMSS 2023 Conference (less any sums already credited).

8. WHEN WOULD I GET MY CASH PAYMENT OR CREDIT?

The Court will hold a hearing on ___________, 2021 to decide whether to approve the Settlement. If the Court

approves the Settlement after that, there may be appeals. It is always uncertain whether those appeals can be

resolved, and resolving them can take time. Please be patient.



5

9. WHAT IF SETTLEMENT CLASS MEMBERS CLAIM MORE THAN $2.8 MILLION?

If Settlement Class Members’ claims from the Cash Fund would result in HIMSS paying more than $2.8 million to

the Cash Fund, then each Settlement Class Member’s claim will be reduced pro rata, meaning that each cash award

will be reduced by an equal percentage until the Settlement Class Members’ claims no longer exceed the funds

available for payment from the $2.8 million.

10. WHAT AM I GIVING UP TO STAY IN THE SETTLEMENT CLASS?

Unless you exclude yourself, you are staying in the Settlement Class, and that means that you cannot sue, continue

to sue or be part of any other lawsuit against HIMSS about the legal issues in this case. It also means that all of the

Court’s orders will apply to you and legally bind you. If you sign the Claim Form, you will agree to a Release of

claims which describes exactly the legal claims that you give up if you get Settlement benefits. The Release is

defined and detailed in the Settlement Agreement, which is available at ______________________.

EXCLUDING YOURSELF FROM THE SETTLEMENT (OPTING OUT)

If you do not want to participate in this Settlement, but you want to keep the right to sue or continue to sue HIMSS,

on your own, about the legal issues in this case, then you must take steps to get out. This is called excluding

yourself or opting out of the Settlement Class.

11. HOW DO I GET OUT OF THE SETTLEMENT?

Any Settlement Class Member that wants to be excluded from the Settlement Class and to become an Opt Out must

submit a Request for Exclusion to the Settlement Administrator at the address provided below.

Any request to be excluded from the Settlement Class must be postmarked on or before _________, 2021 and must:

i. Have the signature of the member of the Settlement Class, even if represented by counsel. If the

member of the Settlement Class is an entity and not an individual, the Request for Exclusion must

be signed by an officer or director of the entity with authority to act on behalf of that entity. If the

Settlement Class Member is represented by counsel, the Request for Exclusion shall also be signed

by that attorney;

ii. State the name, address and telephone number of the person or entity requesting exclusion;

iii. Contain a clear and unambiguous statement communicating that such person or entity elects to be

excluded from the Settlement Class, does not wish to be a Settlement Class Member and elects to be

excluded from any judgment entered pursuant to the Settlement.

Requests for Exclusion must be mailed to:

[Address]

You may exclude yourself on an individual basis only; so-called “mass” or “class” opt outs are not allowed.

12. IF I DO NOT EXCLUDE MYSELF, CAN I SUE HIMSS FOR THE SAME THING LATER?

No. Unless you exclude yourself, you will be bound by the Final Order and Judgment, and you give up the right

to sue HIMSS for the claims that this Settlement resolves. If you have a pending lawsuit, speak to your lawyer in

that lawsuit immediately. You must exclude yourself from this Settlement Class to continue your own lawsuit.

13. IF I EXCLUDE MYSELF, CAN I GET ANY OF THE BENEFITS OF THE SETTLEMENT?

No. If you exclude yourself, do not submit a Claim Form to ask for a cash payment and credits. But you may sue,

continue to sue or be part of a different lawsuit against HIMSS.

14. IF I EXCLUDE MYSELF, CAN I OBJECT TO THE SETTLEMENT?

No. A member of the Settlement Class that submits a timely Request for Exclusion may not file an objection to

the Settlement and shall be deemed to have waived any rights or benefits under this Settlement Agreement.



6

15. IF I DO NOT SUBMIT A REQUEST FOR EXCLUSION BY ______, 2021 OR I DO NOT

SEND IT TO THE ADDRESS LISTED ABOVE, CAN I STILL EXCLUDE MYSELF?

No. Any Settlement Class Member that fails to submit a timely and complete Request for Exclusion sent to the

proper address shall be subject to and bound by this Settlement and every order or judgment entered pursuant to

this Settlement. Any purported Request for Exclusion or other communication sent to such address that is unclear

or internally inconsistent with respect to the Settlement Class Member’s desire to be excluded from the Settlement

Class will be deemed invalid unless determined otherwise by the Court. Requests for Exclusion signed only by

counsel or another representative shall not be permitted.

THE LAWYERS REPRESENTING YOU

16. DO I HAVE A LAWYER IN THE CASE?

The Court has appointed Peyton J. Healey, Esq. of Hedrick Kring, PLLC to represent you as 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.

17. HOW WILL THE LAWYERS BE PAID?

Class Counsel will ask the Court for Attorneys’ Fees and Expenses in an amount less than one million dollars and

a Service Award of $8,860.00 (eight thousand eight hundred sixty dollars) to Plaintiff HatchMed Corp. and

$30,660.00 (thirty thousand six hundred sixty dollars) for Plaintiff Novarad Corporation. The Court may award

less than these amounts. The fees and expenses that the Court approves will be paid from the Cash Fund. Class

Counsel’s Motion for Attorneys’ Fees and Expenses will be available on the Settlement Webpage once it has been

filed.

OBJECTING TO THE SETTLEMENT

You can tell the Court that you do not agree with the Settlement or some part of it.

18. 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. You can

ask the Court to deny approval by filing a written notice of objection. You cannot ask the Court to order a different

Settlement; the Court can only approve or reject the Settlement. If the Court denies approval, no cash payments or

credits will be provided under the Settlement, and the lawsuit will continue. If that is what you want to happen,

you may object. Please note that you cannot both object to the Settlement and opt out of it.

Any objection to the proposed Settlement must be in writing. If you file a timely written notice of objection, you

may, but are not required to, 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 hiring and paying that attorney. Your objection

must be filed on or before _______, 2021 or it will not be considered.

Any Settlement Class Member that wishes to be heard at the Final Approval Hearing, or that wishes for any

objection to be considered, must file a written notice of objection by _______________, 2021 that must:

i. Have the signature of the member of the Settlement Class objecting, even if represented by counsel.

If the member of the Settlement Class is an entity and not an individual, the objection must be signed

by an officer or director of the entity with authority to act on behalf of that entity. If the Settlement

Class Member that is objecting to the Settlement is represented by counsel, the objection shall also

be signed by that attorney;

ii. State the name, address and telephone number of the person or entity objecting;

iii. State the name, address and telephone number of every attorney representing or assisting the

objector;



7

iv. Contain a detailed statement of each objection asserted, including the grounds for objection and

reasons for appearing and being heard, together with any documents such person or entity wishes to

be considered in support of the objection;

v. Contain a list of all cases in which the Settlement Class Member or Settlement Class Member’s

counsel filed or in any way participated -- financially or otherwise -- objecting to a class settlement

during the preceding five years; and

vi. Contain a statement regarding whether the Settlement Class Member intends to appear at the Final

Approval Hearing, either with or without counsel, and a list of all persons, if any, who will be called

to testify in support of the objection.

A Settlement Class Member must file a notice of objection, including any request to be heard, with the Clerk of the

Court, and serve by mail or hand delivery such notice of objection, including any request to be heard, including all

papers or evidence in support thereof, upon one of the Class Counsel and Defense Counsel, at the addresses set

forth below, no later than ________________________.

Clerk of the Court Class Counsel HIMSS’ Counsel

Clerk of the Court

United States District Court

for the Northern District of Illinois

219 South Dearborn Street


Peyton J. Healey, Esq.

Hedrick Kring, PLLC


Dallas, Texas 75201

Mark S. Mester, Esq.

Robert C. Collins III, Esq.

Kirsten C. Lee, Esq.

Latham & Watkins LLP

330 N. Wabash Avenue, Suite 2800


Any Settlement Class Member that does not properly or timely file his or her objection with the Clerk of the Court,

along with the required information and documentation set forth above, or to serve it as provided above, shall not

be heard during the Final Approval Hearing, shall not have their objections considered by the Court and shall be

foreclosed from seeking any adjudication or review of the Settlement by appeal or otherwise.

19. WHAT IS THE DIFFERENCE BETWEEN OBJECTING AND EXCLUDING?

Objecting is simply telling the Court that you do not like something about the Settlement. You can object only if

you stay in the Settlement Class. Excluding yourself is telling the Court that you do not want to be part of the

Settlement Class. If you exclude yourself, you have no basis to object because the case no longer affects you.

20. IF I DO NOT SUBMIT AN OBJECTION BY ______, 2021 OR I DO NOT PROPERLY FILE

AND SERVE IT, CAN I STILL OBJECT TO THE SETTLEMENT?

No. Any Settlement Class Member that does not properly or timely file his or her objection with the Clerk of the

Court, along with the required information and documentation set forth above, or to serve it as provided above,

shall not be heard during the Final Approval Hearing, shall not have their objections considered by the Court and

shall be foreclosed from seeking any adjudication or review of the Settlement by appeal or otherwise.

THE COURT’S FINAL APPROVAL HEARING

The Court will hold a hearing to decide whether to approve the Settlement. You may attend and you may ask to

speak, but you do not have to.

21. WHEN AND WHERE WILL THE COURT DECIDE WHETHER TO APPROVE THE

SETTLEMENT?

The Court will hold a Fairness Hearing at ______ on ____________ in Courtroom 1425 at the United States District

Court for the Northern District of Illinois, 219 South Dearborn Street, Chicago, Illinois 60604, or by remote means

as ordered by the Court. At this hearing, the Court will consider whether the Settlement is fair, reasonable and

adequate. If there are timely and proper objections, the Court will consider them. The Court will listen to people

that have timely and properly asked to speak at the hearing. The Court may also decide how much to pay Class



8

Counsel and award Plaintiffs. After the hearing, the Court will decide whether to approve the Settlement. We do

not know how long these decisions will take.

22. DO I HAVE TO ATTEND THE HEARING?

No. Class Counsel will answer any questions the Court may have, but you are welcome to come at your own

expense. If you submit an objection, you do not have to come to Court to talk about it. As long as you timely and

properly submitted your written objection, along with the required information and documentation set forth above,

the Court will consider it. You may also pay your own lawyer to attend, but it is not necessary.

23. MAY I SPEAK AT THE HEARING?

You may ask the Court for permission to speak at the Final Approval Hearing. To do so, you must submit a written

notice of objection that states your intention to appear at the Final Approval Hearing, either with or without counsel,

as outlined above. Be sure to include your name, address, telephone number and your signature as well as the

signature of any attorney representing you, in addition to the other information outlined above. Your written notice

of objection indicating your intention to appear must be filed with the Clerk of the Court, and served by mail or

hand delivery upon one of the Class Counsel and Defense Counsel, at the addresses set forth on Page 7 above, no

later than _________________, 2021. You cannot speak at the hearing if you excluded yourself.

IF YOU DO NOTHING

24. WHAT HAPPENS IF I DO NOTHING AT ALL?

If you paid 2020 Conference Fees to HIMSS, you may be eligible to receive a credit equal to fifty percent (50%)

of your 2020 Conference Fees that can be used toward fees for exhibition space, meeting space and/or sponsorships

at the HIMSS 2021 Conference and that will be applied to your account upon execution of a contract to attend the

HIMSS 2021 Conference (less any sums already credited) and a credit equal to ten percent (10%) of your 2020

Conference Fees that can be used toward fees for exhibition space, meeting space and/or sponsorships at the HIMSS

2022 Conference and that will be applied to your account upon execution of a contract to attend the HIMSS 2022

Conference (less any sums already credited). To receive this Credit-Only Option, you are not required to do

anything.

Notwithstanding the foregoing, if the date the Settlement becomes effective (i.e., the Effective Date) does not occur

until after the first day of the HIMSS 2021 Conference, and you and HIMSS have not yet separately agreed that the

credit provided in connection with the HIMSS 2020 Conference shall remain available for use toward exhibition

space, meeting space and/or sponsorships at the HIMSS 2021 Conference (less any sums already credited), then

the credits provided for use toward exhibition space, meeting space and/or sponsorships at the HIMSS 2021

Conference shall instead be available for use toward exhibition space, meeting space and/or sponsorships at the

HIMSS 2022 Conference and will be applied to your account upon execution of a contract to attend the HIMSS

2022 Conference (less any sums already credited), and the credits provided for use toward exhibition space, meeting

space and/or sponsorships at the HIMSS 2022 Conference shall instead be available for use toward exhibition space,

meeting space and/or sponsorships at the HIMSS 2023 Conference and will be applied to the your account upon

execution of a contract to attend the HIMSS 2023 Conference (less any sums already credited).

If you do nothing, and do not properly submit a Claim Form by ________, 2021, you will not be eligible to receive

any cash payment as part of the Class Settlement. In addition, unless you exclude yourself from the Settlement

Class, you will give up your right to be able to start a lawsuit, continue with a lawsuit or be part of any other lawsuit

against HIMSS about the legal issues in this case ever again.



9

GETTING MORE INFORMATION

25. ARE THERE MORE DETAILS ABOUT THE SETTLEMENT?

This Notice summarizes the proposed Settlement. More details are in the Settlement Agreement. You can get a

copy of the Settlement Agreement and other important case documents at ___________________.

26. HOW DO I GET MORE INFORMATION?

You can call toll-free ______________, email _______________ or visit the website at ____________________,

where you will find the Claim Form and other important documents related to the Settlement. You should check

the website regularly for updates on the case.

You may also contact the attorneys appointed by the Court to serve as Class Counsel:

Peyton J. Healey, Esq.

Hedrick Kring, PLLC


Dallas, Texas 75201

Telephone: (214) 880-9600

PLEASE DO NOT CONTACT THE COURT REGARDING THIS NOTICE.


EXHIBIT A-5


HEDRICK KRING, PLLC - Dallas & Houston

ASSERTIVE AND METICULOUS.

Hedrick Kring rallies around major legal challenges. Motivated clients deserve representation with drive and decisiveness.

PROFILE

Hedrick Kring, PLLC, is a client-focused, results-driven business litigation firm. We act quickly and aggressively to protect your interests, focusing on what is important to you and your business. We are zealous advocates with extensive courtroom experience. We have a reputation for excellence and attention to detail.

Our clients range from individual entrepreneurs and startups to large corporations with business operations across the country and around the globe. We know our clients, understand their interests, and help define their goals. We represent an equal number of plaintiffs and defendants. Our practice is not a cookie-cutter practice; we thrive on creativity, variety, and flexibility. We are always working to help our clients achieve their goals.

Our lawyers have experience from national and regional law firms, federal clerkships, United States Department of Justice and private businesses. They have been honored by being named as Super Lawyers and Rising Stars by Texas Super Lawyers year after year; elected to the prestigious American Board of Trial Advocates (ABOTA); and featured in business and community publications like the Houston Business Journal, and D Magazine as Best Lawyers under 40 in Dallas, Best Lawyers in Dallas, the 22nd largest national verdict of 2017, and a Top 20 verdict in Texas 2019.


Recent Results Obtained by the Firm and its Lawyers:

Eight-figure jury verdict in Dallas, County, Texas, the 22nd largest of 2017, and the 5th largest in Texas (Peyton J. Healey)

$20 Million jury verdict in Dallas County District Court in favor of Preston Place Condominium for negligent placement of insurance (Joel Bailey, Joshua Hedrick, and Megan Servage)

Affirmance of complete dismissal of computer hacking and scraping lawsuit after oral argument before the United States Court of Appeals for the 5th Circuit (Peyton J. Healey)

Reversal of improperly granted summary judgment after oral argument before the United States Court of Appeals for the Fifth Circuit (Peyton J. Healey)

After prevailing on summary judgment and in the Fifth Court of Appeals, successfully defended a petition for review to uphold a client’s judgment at the Texas Supreme Court. (Jacob B. Kring and Megan E. Servage)

Complete defense verdict following week-long jury trial in Harris county district court, including recovery of attorneys’ fees (Jacob Kring and Mark Fritsche)

Voluntary dismissal of class action brought under the Telephone Consumer Protection Act against medical staffing company (Jacob B. Kring and C. Jeff Price)

Summary Judgment against oil and gas operator seeking $3M in past proceeds for alleged fraudulent transfer (Jacob B. Kring and Megan E. Servage)

Obtained favorable, multi-million-dollar settlement for a client in a construction defect matter (Kodie P. Bennion and Joshua L. Hedrick)

Represented healthcare startup pursuing recovery for trade secret misappropriation, quickly obtaining declaration of intellectual property ownership, clearing the way for seed round funding. (Jacob B. Kring and Peyton J. Healey)

Served as local counsel in a case where the defense team prevailed on a motion to dismiss resulting in a complete dismissal with prejudice where the plaintiff sought tens of millions of dollars in alleged damages. (Joshua L. Hedrick)

Obtained voluntary dismissal with prejudice of employment claims brought against business arising out of the Fair Labor Standards Act (Peyton J. Healey)

Favorable settlement of $100M lawsuit for an energy services company client in Fort Worth federal court against one of the largest Energy companies in America. The settlement saved the client from insolvency and the case was fought against the Texas Lawyer of the Year (Kevin Corcoran and Jacob Kring)


Representative Class Action Matters: • Seeligson et al v. Devon Energy Prod. Co., Civil Action No. 2016-cv-00082 (N.D. Tex.) —Currently Serving as co-

counsel in prosecution of oil and gas royalty underpayment case where class was certified over objection of Defendant. (Josh Hedrick)

• Armstrong v. Kimberly-Clark; Civil Action No. 3:20-cv-3150 (N.D. Tex.) —Currently serving as co-counsel in prosecution of consumer protection class action alleging defects in flushable wipe product. (Josh Hedrick)

• Isolde v. Trinity Industries Inc et al., Civil Action No. 2015-cv-02093 (N.D. Tex.)—Served as co-counsel in defense of putative securities class action; case settled. (Josh Hedrick)

• Freely et al. v. Lindell et al.; Cause No. 2014-cv-01738 (D. Nev.)—served as plaintiff’s counsel in putative securities class action arising out of misrepresentations made by an intellectual property holding company. (Peyton J. Healey)

• Wendt et al. v. 24 Hour Fitness., Civil Action No. 2013-cv-04910 (N.D. Tex.)—Served as co-counsel in defense of putative consumer class action; case dismissed with prejudice and dismissal affirmed on appeal. (Josh Hedrick)

• Arshi v. Stadler et al., Civil Action No. 2011-cv-01087 (M.D. Ten.)—served as plaintiff’s counsel in putative securities class action in connection with false representations concerning defendant’s internal controls; case settled. (Peyton J. Healey)

• Arsenault et al v. Berrard et al., Civil Action No. 2018-cv-00108 (S.D.N.Y.)—served as plaintiff’s counsel in putative securities class action arising out of allegedly improper accounting practices. (Peyton J. Healey)

• Gillis v. UnitedHealth Group, Inc. et al., Civil Action No. 2018-cv-00108 (E.D. Tex.)—served as plaintiff’s counsel in opt-out of class action in connection with the death of a minor; case settled. (Peyton J. Healey)

• Gray v. Life Partners Holdings, Inc. et al., Civil Action No. 2011-cv-00057 (W.D. Tex.)—served as plaintiff’s counsel in putative securities class action in connection with allegedly improper use of unrealistic life expectancy tables. (Peyton J. Healey)


The Firm’s Areas of Practice

• Complex Business Litigation • Securities Fraud Litigation • Class Action Litigation • Product Liability Litigation • Bankruptcy Litigation • Real Estate Litigation • Creditors’ Rights Litigation • Oil and Gas Litigation • Appellate Litigation • Trust and Estate Litigation • Local Counsel Practice • Trade Secret Litigation • Contract Disputes • Unfair Competition Litigation • Commercial Lender/Borrower Litigation • Shareholder and Partnership Disputes • Labor and Employment Disputes

Contact

Dallas Office Houston Office 1700 PACIFIC AVENUE, SUITE 4650 808 TRAVIS STREET, SUITE 540 DALLAS, TEXAS 75201 HOUSTON, TEXAS 77002 Direct: (214) 880-9600 Direct: (832) 871-3370 Fax: (214) 481-1844 Fax: (281) 529-7677


PEYTON J. HEALEY | Partner HEDRICK KRING, PLLC

PROFILE Peyton Healey is a business litigation attorney and partner at Hedrick Kring, PLLC. Peyton’s practice focuses on complex civil litigation and commercial transactional matters for startup entities and established companies. In a 2017 jury trial, Peyton was lead counsel for two business plaintiffs that resulted in a $98 million judgment against an international bank, the 22nd largest verdict in the United States that year. Peyton has successfully litigated cases numerous class action matters, as well as cases involving trade secret misappropriation, fraud, breach of contract, negligence, and a broad range of intellectual property infringement and enforcement matters for established business and startups alike.

Peyton is certified by the National Venture Capital Association and Berkeley Law in venture finance, and he acts as an Outside General Counsel for startup and related ventures, including business accelerators and emerging technologies companies, and in particular companies focusing on drones (both hardware and as-a-service), cutting edge watersports, next-generation battery technologies, and wellness endeavors. Peyton has counseled startup ventures at all stages of their funding lifecycles, managed complex intellectual property acquisition and licensing efforts, and formed business entities and structures to meet client goals.

HONORS / AWARDS

• Texas Super Lawyer (2020), as listed in Texas Monthly and Texas Super Lawyers Magazine, a Thomson Reuters service. • Named as a “Rising Star” by Texas Super Lawyers (2010, 2012, 2014, 2015, 2016, 2017, and 2018)

EDUCATION

• Baylor University, J.D. 2005 • Baylor University, Bachelor of Arts, 2001

CLERKSHIP

Clerked for the Department of Justice, Office of the United States Trustee.

ADMITTED TO PRACTICE

• Fifth Circuit Court of Appeals • Federal Circuit Court of Appeals • U.S. District Court, Northern District of Texas • U.S. District Court, Southern District of Texas • U.S. District Court, Eastern District of Texas • U.S. District Court, Western District of Texas • U.S. District Court, Eastern District of Wisconsin • U.S. District Court, Northern District of Illinois (General Bar) • State of Texas


EXHIBIT A-6


Nicholas T. Peters

EXPERIENCE Partner December 2009 to Present Associate September 2003 to December 2009

FITCH, EVEN, TABIN & FLANNERY, LLP Chicago, IL - Represents clients in various federal court matters including complex patent litigation matters - Represents clients in post-grant U.S. Patent and Trademark Office proceedings - Represents client in outbound and inbound world-wide patent licensing matters - Extensive experience creating and managing patent portfolio development for clients ranging from individual inventors and small technology-based companies to large multinational corporations across industries including secure access devices, wireless communication, magnetic storage media erasure, medical and imaging devices, microchip technology, mechanical water systems elements, software, and various e-commerce or Internet-based businesses - A member of Fitch Even’s Executive Committee since 2016

Adjunct Professor Spring 2015

UNIVERSITY OF ILLINOIS AT URBANA-CHAMPAIGN Champaign, IL Co-taught Current Issues in Patent Defense class

Summer Associate Summer 2002

BELL, BOYD & LLOYD Chicago, IL Drafted patent applications and performed legal research regarding Intellectual Property.

Teacher Assistant Spring 1999, 2000

VANDERBILT UNIVERSITY Nashville, TN Taught Practical Physics laboratory sections. Graded class papers. Prepared and ran weekly labs. Ran class review sessions. Gave occasional class lectures.

Research Assistant February 1997 to August 2000

VANDERBILT UNIVERSITY LIVING STATE PHYSICS RESEARCH GROUP Nashville, TN http://www.vanderbilt.edu/lsp Researched and developed SQUID (Superconducting Quantum Interference Device) magnetometer systems. Designed, built, and tested instruments. Designed and ran experiments measuring magnetic fields created by current in heart tissue or remnant fields in geological samples.

RECOGNITIONS - Named a Top 10 Most Active Attorney Representing Patent Owners in U.S. Patent and Trademark Office patent challenge proceedings (IPR) by Patexia (case range 2013–19) - Named a Top 50 Best Performing/Most Active Attorney Overall in IPR by Patexia (case range 2013–19) - Named a Leading Lawyer in Illinois in Intellectual Property Law and Patent Law (2021) - Selected for inclusion in Illinois Super Lawyers – Rising Stars for Intellectual Property Law and Intellectual Property Litigation (2008–16) - Selected as an Emerging Lawyer in Illinois in Intellectual Property Law (2015)

PUBLICATIONS and PRESENTATIONS

- "Tales from the IPR Counsel’s Table,” Fitch Even Webinar, with Paul B. Henkelmann, June 4, 2020 - Adjunct Professor, University of Illinois College of Law, Patent Defenses course (2015) - “Are Abstract Technological Advances Patentable? Go Ask Alice,” Fitch Even Webinar, with Steven G. Parmelee, July 24, 2014 - “The Leahy-Smith America Invents Act: A First Look,” Fitch Even Webinar, October 4, 2011 - “Matching Patent Prosecution to Your Business Goals,” Fitch Even Webinar, September 21, 2011


http://www.vanderbilt.edu/lsp

- Guest Lecturer on Intellectual Property, New Venture Formation course, University of Illinois at Chicago, October 7, 2010 - “High Resolution Low-Temperature Superconductivity Superconducting Quantum Interference Device Microscope for Imaging Magnetic Fields of Samples at Room Temperatures.” F. Baudenbacher, N. Peters, J. Wikswo, Vol. 73, No. 3, Review of Scientific Instruments, March 2002 - “A Low Temperature Transfer Of ALH84001 from Mars to Earth.” B. Weiss, J. Kirschvink, F. Baudenbacher, H. Vali, N. Peters, F. Macdonald, J. Wikswo, Vol. 290 Science 791, October 27, 2000

EDUCATION

LOYOLA UNIVERSITY CHICAGO SCHOOL OF LAW Chicago, IL Juris Doctor, May 2003 Cum Laude

Chicago Intellectual Property Colloquium Fellow, Spring 2003 See http://www.chicagoip.com Loyola Intellectual Property Fellow, 2002-2003 academic year Giles Sutherland Rich Intellectual Property Moot Court Team, Spring 2002 Civil Procedure Tutor, 2002-2003 academic year Property Tutor, 2001-2002 academic year CALI Award, top grade in Legal Writing section, Fall 2000, Spring 2001

VANDERBILT UNIVERSITY Nashville, TN Master of Science in Physics, May 2000 Thesis: A Low Temperature Superconducting Quantum Interference Device Scanning Microscope for Geological and Biological Samples. VANDERBILT UNIVERSITY Nashville, TN Bachelor of Science in Mathematics and Engineering Science with a concentration in Applied Physics, Magna Cum Laude, December 1998

Dean’s List seven semesters College of Arts and Science College Scholar

ADMISSIONS - State of Illinois (2003)

- U.S. Patent and Trademark Office (2002) - U.S. District Court for the Northern District of Illinois (2003)


http://www.chicagoip.com/

Nicole L. Little

PROFESSIONAL EXPERIENCE

Fitch, Even, Tabin & Flannery, LLP, Chicago, IL Partner December 2015–Present Associate September 2008–December 2015

Represent clients in complex intellectual property litigation, inter partes USPTO proceedings, and in commercial litigation involving contractual disputes and business torts. Representative technologies include high‐speed industrial printers, construction and building products, computer software applications, lighting fixtures and circuitry, garage door systems, industrial equipment, tools, and stored‐value card systems.

Advise clients regarding strategy for monetizing intellectual property portfolios, including assessing and valuing licensing, asset sale, and litigation opportunities.

Draft and negotiate highly customized and standard cobranding agreements, strategic partnerships, sponsorships, product integration deals, software as a service (SaaS), and agency services agreements for consumer‐facing clients in industries including retail and hospitality.

Interface with legal and engineering departments to assist in implementing strategies to harvest intellectual property and maximize return on investments.

Advised client regarding and negotiated SaaS agreement for a content repository to maintain, catalog and exploit client’s invaluable archives of digital assets.

Conduct patentability and freedom‐to‐operate analyses for technologies including medical equipment and supplies, food sciences, irrigation, and construction and building materials.

Provide brands counseling and approve ad copy, social media, collateral, sweepstakes, and promotion initiatives across numerous industries, including for a major worldwide hotel chain, consumer goods retailer, and retail point‐of‐sale merchandiser.

Participate in jury and bench trials, including voir dire, preparing witnesses, arguing objections and motions, drafting jury instructions, and conducting jury charge conferences.

Argue pretrial conferences and dispositive and disputed motions in federal and state court. Draft pleadings including appellate briefs, post‐trial motions, Daubert motions, motions for summary

judgment, motions in limine, Markman briefs, discovery motions, and oppositions to the same. Second‐chair district court cases, with responsibilities of pre‐filling due diligence, taking and defending

corporate, personal and expert depositions, directing written discovery, managing document collection and production, expert discovery, and preparing case for trial.

Draft and negotiate settlement and license agreements for federal and state court disputes. Represented patent owner in appeal to Federal Circuit from judgment of partial infringement, invalidity, and

unenforceability of patents directed to tool bags and obtained reversal of both grounds of inequitable conduct, vacatur of invalidity ruling, and affirmance of infringement ruling as to one accused product.

Represented LED lighting manufacturer in successfully petitioning for review of the competitive patent at issue in parallel district court litigation, resulting in settlement of district court case and stipulated dismissal of the inter partes review (IPR) after institution.

Defeated seven IPR petitions at the preliminary stage that were filed against client after its initiation of a patent infringement lawsuit to enforce its portfolio of patents directed to a breakthrough method of formulating gypsum wallboard against a major competitor.

Defended patent owners at preliminary and trial stages of IPRs for patents related to methods of achieving high data transfer rates for data acquisition systems and to digital rights management.

Participated in Australian patent opposition proceeding that successfully maintained important patent protection for wallboard manufacturer’s key product offering over challenge from its largest competitor.

Firm responsibilities include: Chair of Recruitment & Employment Committee; Executive Committee Member; Co‐lead of women’s initiatives.


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Sughrue Mion, Washington D.C. Summer Associate Summer 2007

Conducted legal research, drafted memoranda, and participated in extensive document review in support of ongoing patent litigation.

Drafted responses to foreign office actions in the chemicals and chemical engineering practice area.

Honorable Bill Schuette, Michigan Court of Appeals, Lansing, MI Judicial Extern Summer 2006

Assisted in drafting judicial opinions; researched and wrote bench memoranda.

PROFESSIONAL MEMBERSHIPS

Chicago Women in IP (ChiWIP) Chair July 2019–Present Chair‐Elect; Board Member; Committee Chair (Various) July 2015–Present

Co‐founded professional association and grew membership to over 750 women locally practicing in IP law and related areas in less than three years, holding over 100+ events.

Spearheaded four progressive‐style networking dinners for 200+ attorneys and legal professionals. Developed marketing and programming for social and professional development events.

University of Michigan Club of Greater Chicago Secretary May 2016–April 2019 Committee Chair (Marketing) May 2016–Present Board Member May 2015–Present

Compose weekly e‐communication for dissemination to Chicagoland’s 25,000+ alums. Fundraise for scholarships awarded to Chicagoland students attending the University of Michigan.

American Intellectual Property Law Association

Brand Activation Association, Inc.

PUBLICATIONS

“Working Up Your Patent Infringement Case: How Doing Your Homework Can Keep You One Step Ahead,” Landslide, Vol. 12, No. 5, May/June 2020.

“Gambling on Patentable Subject Matter: The Intersection of Daily Fantasy Sports and Patent Litigation,” Landslide, Vol. 9, No. 2, November/December 2016.

“Mentors, Sponsors, and Dismissing the 'Mean Girl' Mentality: Finding Success as a Woman in IP,” Law Practice Today, American Bar Association, March 2016.

PRESENTATIONS

“Using Effective Communication to Achieve Litigation Success,” American Intellectual Property Law Association, February 3, 2021.

“Litigation Financing,” Moderator, Chicago Women in IP webinar, December 10, 2019. “In‐House Attorney Self‐Promotion,” Moderator, Chicago Women in IP webinar, November 6, 2019. “Understanding Women's Conflict in the Legal Workplace and the Bias That Built It,” Moderator, Fitch Even

Webinar, June 13, 2019. “The Big Picture—Patent Litigation as Part of a Business Strategy,” Patent Litigation 2018: Advanced

Techniques & Best Practices, Practising Law Institute, Chicago, October 17–18, 2018.


Page 3 of 3

“Is Your Data Safe? Cybersecurity and Protection of Trade Secrets Under the Defend Trade Secrets Act,”Federal Circuit Bar Association’s Intellectual Property Law Symposium, Chicago, March 15, 2017.

“The Impact of IPRs and CBMs on Patent Litigation,” American Intellectual Property Law Association,Minneapolis, Minn., May 18, 2016.

“Advertising and Promotions: Basic Legal Principles in Today's Fast‐Paced Digital World,” Fitch, Even, Tabin &Flannery Webinar, with Sherri N. Blount, January 23, 2014.

EDUCATION

Chicago‐Kent College of Law, Chicago, IL Juris Doctor, Certificate in Intellectual Property Law May 2008

Journal of Intellectual Property, Editor‐In‐Chief, 2007–2008; Submissions Editor, 2006–2007 American Constitution Society, President, 2007–2008; Webmaster and Committee Head 2006–2007 Student Mentor and Chicago‐Kent Advocate, Fall 2006–Spring 2007 Dean’s List, Spring 2006, Spring 2007

The University of Michigan, Ann Arbor, MI Bachelor of Science & Engineering in Chemical Engineering, cum laude May 2005

Dean’s List 5 semesters, University Honors 3 semesters American Institute of Chemical Engineers, U of M Chapter Executive Board Member University of Michigan Dance Marathon Team Captain, Committee Member, Dancer

ADMISSIONS

State of Illinois (Admitted November 2008) U.S. District Court for the Northern District of Illinois U.S. District Court for the Eastern District of Texas U.S. District Court for the Western District of Texas U.S. Court of Appeals for the Federal Circuit U.S. Court of Appeals for the Seventh Circuit


Documents

PLAINTIFFS’ UNOPPOSED MOTION FOR PRELIMINARY ......2021/03/23 · No. 04-md-15861-CCB, 2010 WL 2342413 (D. Md. May 19, 2010) ..... 30 Case: 1:20-cv-03377 Document #: 35 Filed: 03/08/21