Aetna Says Law Firm Responsible For Health Info Breach
 
By Emma Cueto, LAW360

May 24, 2018

Aetna Inc. has filed suit in Pennsylvania federal court accusing the class counsel in two underlying privacy suits against the insurer of being responsible for a settlement mailing that allegedly violated members’ privacy anew by potentially revealing their HIV status and launched a new round of litigation.
 
Aetna, which has also sued and been sued by the settlement administrator over the mailing, claimed in the suit filed Wednesday that attorneys at Whatley Kallas LLP as well as at Consumer Watchdog should have to pay the $17 million settlement Aetna reached in the second set of privacy class actions.
 
According to Aetna, Whatley Kallas and Consumer Watchdog, a nonprofit that advocates for consumer interests, were the ones to hire Kurtzman Carson Consultants as the settlement administrator, worked with KCC to create the notices and should have realized that the windowed envelopes that KCC used allegedly made the phrase “HIV medications” visible below patients’ names.
 
The mailing at issue in the new suit was part of a settlement in two underlying class actions, which alleged that Aetna had violated the privacy of members who were HIV-positive by requiring them to receive medication through the mail. The mailing, sent out last July, told policyholders who take HIV medications and preexposure prophylaxis — or PrEP, an HIV preventative regimen — how to fill their prescriptions.
 
As a result of the mailing, Aetna faced new privacy suits, which it settled for $17 million, as well as individual suits and investigations by state attorneys general, according to the complaint. So far the investigations have resulted in an additional $1.15 million settlement with the New York attorney general.
 
In the instant suit, Aetna denies all responsibility for the mailing.
 
The company, which has also previously pointed the finger at KCC, said in the Wednesday complaint that the consultant indicated that KCC listed Whatley Kallas and Consumer Watchdog were the “clients” for the proposed mailing and that they failed to check the final product. The windowed envelopes were also a violation of the proposal included in the settlement agreement, the complaint alleged.
 
Whatley Kallas and Consumer Watchdog, which continue to represent a John Doe plaintiff in an individual suit against Aetna, denied they were responsible for the bungled settlement mailing.
 
“Aetna’s attempt to blame us is a frivolous waste of judicial resources and Aetna knows it,” Harvey Rosenfield of Consumer Watchdog said in a statement. “We had no control over the mailing process and had no idea that Aetna decided to use an envelope with a giant window that exposed the recipient’s HIV status.”
 
Joe Whatley of Whatley Kallas echoed that he believed the suit was “frivolous” and added, “Some have called Aetna’s mess a ‘comedy of errors,’ but Aetna’s inability to protect the personal health information of its members is no joke. … We look forward to employing all the tools of the legal system to expose how this occurred and who at Aetna and its many law firms was responsible.”
 
Counsel for Aetna did not respond Thursday to a request for comment.
 
Aetna is represented by Matthew P. Kanny, Donna L. Wilson and Brandon P. Reilly of Manatt Phelps & Phillips LLP and Frederick P. Santarelli and Thomas J. Elliott of Elliott Greenleaf PC.
 
Counsel information for Whatley Kallas and Consumer Watchdog was not available Thursday.
 
The case is Aetna Inc. v. Whatley Kallas et al., case number 2:18-cv-02172 in the U.S. District Court for the Eastern District of Pennsylvania.
 
–Additional reporting by Allison Grande, Christopher Crosby, Dave Simpson and Shayna Posses. Editing by Bruce Goldman.
 
Clarification: The headline has been updated to clarify the nature of the allegation.
 
Correction: A previous version of this article misstated Whatley Kallas and Consumer Watchdog’s alleged role in approving the notices. This error has been corrected.