Boykin v Tennessee Orthopedic Alliance Settlement

This Lawsuit was filed on behalf of TOA’s current and former patients in connection with a Phishing Attack at TOA that occurred between August and October 2019. Plaintiffs’ Complaint asserts claims for negligence, negligence per se, invasion of privacy and public disclosure of private facts, breach of implied contract, unjust enrichment, and constructive fraud. The Lawsuit requests an award of monetary damages as well as equitable, declaratory, and injunctive relief compelling TOA to adopt reasonably sufficient security practices to safeguard patient personally identifiable information and protected health information that remains in TOA’s custody.

TOA denies any wrongdoing and denies all claims asserted against it in the Lawsuit.  Both sides have agreed to settle the Lawsuit to avoid the cost, delay, and uncertainty of litigation.

You can read Plaintiff’s Amended Complaint, the Settlement Agreement, and other case documents, as well as download a Claim Form, located on this Website.

In a class action, a Class Representatives (in this case, Plaintiffs William Boykin and Sally Robbins), sues on behalf of a group (or a “Class”) of people. Here, the Class Representatives sued on behalf of people whose Personally Identifiable Information (“PII”) and Personal Health Information (“PHI”) was potentially compromised from TOA’s computer systems during Phishing Attacks and who suffered injury or harm resulting from the Phishing Attack.  

To avoid the cost, risk, and delay of litigation, the Parties reached a Settlement as to the claims of Plaintiff and the Settlement Class.

For Settlement purposes, the Court has certified a Settlement Class consisting of all people who meet the following definition:

All individuals residing in the United States who, on or about February 14, 2020, were notified via mail of the Phishing Attack by Tennessee Orthopaedic Alliance, P.A.’s that occurred between August and October 2019. Excluded from the Settlement Class are: (1) the Judge presiding over this Litigation, the Judge’s immediate family members and any members of the Judge’s judicial staff; (2) the officers, directors, and employees of Tennessee Orthopaedic Alliance, P.A.; (3) Class Counsel and their immediate family members; and (4) Settlement Class Members who submit a valid Request for Exclusion prior to the Opt-Out Deadline.

To obtain a recovery, you must submit a Claim Form along with reasonable documentation and/or a proper attestation.  This is the only way to get a payment or receive the Credit Monitoring Services. 

However, all Settlement Class Members will automatically receive Fraud Resolution Services. Settlement Class Members who submit a valid and timely Claim Form, accompanied by proper documentation, may be entitled to the following forms of relief:

•Monetary Compensation: The Settlement provides for a cash payment of up to a sum of two thousand dollars ($2,000) as reimbursement of certain losses arising out of the Data Breach, consisting of the following:

•Out of Pocket Expenses: You will receive reimbursement for all documented out-of-pocket expenses that you incurred (or made) related to the Phishing Attack after February 14, 2020.  The following are examples of allowed documented out-of-pocket expenses:

• Unreimbursed bank, credit card fees and expenses; 
• Unreimbursed charges related to unavailability of funds;
  
• Other Unreimbursed late fees and charges;
• Long distance telephone charges;
• Cell minutes (if charged by the minute);
• Internet usage charges (if either charged by the minute or incurred solely as a result of the Phishing Attack);
• Interest on payday loans taken as a result of the Phishing Attack;
• Interest paid on missed or late payments due to credit freezes;
• Interest on late payments;
• Costs of credit reports or credit monitoring;
• Payments to professionals such as bookkeepers, accountants and lawyers; and
• Other losses incurred by a Participating Settlement Class Member that the Settlement Administrator determines is fairly traceable to the Phishing Attack.

•Lost Time: You can receive reimbursement at the hourly rate of $15.00 per hour for up to six (6) hours of time you spent dealing with the Phishing Attack as follows.  For the first 3 hours, you need only attest that the time was spent as a result of the Phishing Attack.  If you spent more than 3 hours dealing with the Phishing Attack, then compensation for up to an additional 3 hours will be provided if you provide documentation of these additional hours.   If supporting documentation cannot be provided, then you may provide the Settlement Administrator with written statement of the reason documentation cannot be provided and if the reason is deemed reasonable, you will be paid.  

•One Year of Credit Monitoring: You can receive one year of the service named “Identity Guard Total powered by IBM Watson,” that includes:

• Up to $1 Million Dollars reimbursement insurance from AIG covering losses due to identity theft and stolen funds;
• Three bureau credit monitoring providing notice of certain changes to the enrolled Settlement Class Member’s credit profile, including at least two credit bureau inquiry alerts in real-time;
• Real time authentication alerts in as little as three seconds when someone attempts to make a change to enrolled Settlement Class Members’ personal account information within Identity Guard’s network;
• LexisNexis Authentication Alerts utilizing LexisNexis’ database of legal, governmental and newsworthy incidents;
• Alerts based on searches of payday-loan providers and court records and monitoring of the top ten largest U.S. financial institutions, for attempted or actual fraudulent use of the enrolled Settlement Class Members’ information;
• Online income tax filing alerts provided by LexisNexis;
• Dark Web Monitoring that will provide notification if an enrolled Settlement Class Member’s information such as social security number, credit card numbers, financial account numbers, and health insurance number are found on the Dark Web;
• Threat Alerts powered by IBM “Watson’s” artificial intelligence of potential threats relevant to the enrolled Settlement Class Members found by IBM Watson’s artificial intelligence, for instance: breaches, phishing scams, and malware vulnerabilities;
• Customer support and victim assistance provided by Identity Guard®;
• Anti-phishing Applications for iOS & Android Mobile devices; and
• Safe browsing software for personal computers and Macs to help protect the enrolled Settlement Class Member’s computer(s) against malicious content with an add-on for Safari, Chrome, and Firefox web browsers that delivers proactive malware protection by blocking various malware delivery channels including phishing, malvertisements, and Flash (the extension also blocks content and tracking cookies to help protect personal information).

Note: If you already received Credit Monitoring through Kroll offered by TOA after the Phishing Attack, then the Identity Guard Total powered by IBM Watson will be in addition to the monitoring received through Kroll.

Even if you do not file a Claim, all Settlement Class Members will receive:

•Three Years of Fraud Resolution Services: All Settlement Class Members will receive Identity Guard® Fraud Resolution Services where Victim Recovery Specialists (“VRS”) assist Participating Class Members through a step-by-step recovery process and will also provide consultation and support to help alleviate anxiety. 

Once engaged, this team of professionals will place fraud alerts on your credit file and outline the required steps for continued protection. In the event a Participating Settlement Class Member’s information is compromised, the VRS agent will register the event in Identity Guard’s proprietary Case Management System and a Dedicated Case Manager will be assigned to assist the Participating Settlement Class Member for the duration of their identity theft recovery. Dedicated Case Manager duties include:

• Obtaining a real-time three bureau (Equifax®, Experian®, and TransUnion®) credit report and reviews in detail with the Participating Settlement Class Member;
• Contacting the Participating Settlement Class Members' affected creditors where permissible;
• Assisting the Participating Settlement Class Member in placing fraud alerts on their credit files; 
• If needed, working with a limited Power of Attorney (POA);
• Providing full documentation in Identity Guard’s Case Management System (CMS); and
• Working to full resolution with the Participating Settlement Class Member.

The Settlement Administrator will provide the Settlement Class List to Identity Guard who will enroll all Settlement Class Members to receive the Fraud Resolution Services. You do not need to do anything in order to receive this benefit.

Business Practice Commitments. TOA has provided information to the Class Representatives and Class Counsel regarding improvements to its information security systems since the Phishing Attack and has further agreed to implement a robust set of Business Practice Commitments for at least, two years, including access improvements, logging improvements, email security improvements, policy review improvements, encryption improvements, audit improvements and verification to Class Counsel, password improvements, MFA advancements, and training improvements. 

You can submit a Claim Form online or download the Claim Form on the Website and mail it to:

Again, all Claim Forms must be submitted online, or mailed and postmarked, no later than December 28, 2020.

By staying in the Class, all of the Court’s orders will apply to you, and you give TOA a “release.”  A release means you cannot sue or be part of any other lawsuit against TOA about the claims or issues in this Lawsuit (relating to the Phishing Attack), and you will be bound by the Settlement. The specific claims you are giving up against TOA and related persons or entities are called “Released Claims.” The Released Claims are described in Section VI of the Settlement Agreement, which is available under the Documents page of this Website.  The Settlement Agreement describes the Released Claims with specific and accurate legal descriptions, so read it carefully.

The Class Representatives will receive their portion of the Settlement as Settlement Class Member’s if  they opt to submit a Claim.  These two Class Representatives also each will receive a payment of up to $3,850 as a Service Award for having pursued this action.  Any Service Award is subject to Court approval.

To represent the Class, the Court has appointed Joel R. Rhine and Martin A. Ramey of the Rhine Law Firm, P.C. and Micah S. Adkins of the Adkins Firm, P.C. as “Class Counsel.” You can contact Class Counsel at: 

If you don’t want a cash payment or the Credit Monitoring or Fraud Resolution Services  offered by this Settlement and you want to keep the right to sue TOA about issues relating to the Phishing Attack, then you must take steps to get out of the Settlement. This is called “excluding” yourself or “opting out” of the Settlement Class.

To exclude yourself, you must send a letter by mail that: 

(i) States your full name, address and telephone number, 

(ii) Contains your signature or the signature of the person authorized by law to sign on behalf of you, and 

(iii) States unequivocally that you intend to be excluded from the Settlement Class and from the Settlement.  You must mail your exclusion request, postmarked no later than December 28, 2020, to: Boykin v Tennessee Orthopaedic Alliance Settlement, c/o Settlement Administrator, PO Box 7390, Philadelphia, PA. 19101-7390

Any Settlement Class Member who has not requested to be excluded from the Settlement Class may object to the Settlement.  In order to exercise this right, you must submit your objection to the Court.

Your objection must include:

(i) The name of the Litigation, Boykin v Tennessee Orthopaedic Alliance Settlement, Case No. 20-0615 

(ii) Your full name, address, email address, and telephone number; 

(iii) an explanation of the basis upon which you claim to be a Settlement Class Member;

(iv) All grounds for the objection, accompanied by any legal support for the objection; 

(v) The identity of all counsel who represent you, including any former or current counsel who previously represented you and may be entitled to compensation for any reason related to the objection to the Settlement, the fee application, or the application for Service Award; 

(vi) The identity of all counsel representing you who will appear at the Final Approval Hearing; 

(vii) The number of times in which you have objected to a class action settlement within the five (5) years preceding the date on which you file the objection, the caption of each case in which you have made such objections, and a copy of any orders related to or ruling upon your prior such objections that were issued by the trial and appellate courts in each listed case; 

(viii)The number of times in which your counsel and/or counsel’s law firm have objected to a class action settlement within the five (5) years preceding the date that you file the objection, the caption of each case in which the counsel or the firm has made such objections, and a copy of any orders related to or ruling upon counsel’s or the firm’s prior such objections that were issued by the trial and appellate courts in each listed case; 

(ix)  Any and all agreements that relate to the objection or the process of objecting, whether written or verbal, between you or your counsel and any other person or entity; 

(x) A list of any persons who will be called to testify at the Final Approval Hearing in support of the objection;

(xi) A statement confirming whether you intend to personally appear and/or testify at the Final Approval Hearing; and 

(xii) Your signature on the written objection (an attorney’s signature is not sufficient).

If you wish to object to the proposed Settlement you must mail or hand-deliver written objections to the Settlement (“Objections”) to Class Counsel and TOA’s Counsel, at the addresses set forth below. 

Alternatively, you or your counsel may file Objections with the Court through the Court’s electronic case filing (“ECF”) system, with service on Class Counsel and Defendants’ Counsel made through the ECF system.

Additional information and documents, including case documents, are available in the documents section of this Website or by contacting the Settlement Administrator at 1-833-537-1184 or writing to the Settlement Administrator at Boykin v Tennessee Orthopedic Alliance Settlement, c/o Settlement Administrator, PO Box 7390 Philadelphia PA 19101-7390.

PLEASE DO NOT CALL THE COURT, THE JUDGE, CLASS COUNSEL, TOA OR THEIR  COUNSEL WITH QUESTIONS ABOUT THE SETTLEMENT OR CLAIMS PROCESS.