Bennett v. Boyd Gaming Corporation

Filing 91

Order re: 79 MOTION to Approve Settlement Agreement. The motion is granted in part with the remainder held in abeyance. Plaintiff is ordered to file a motion for approval of claims form & approval of the claims administrator by 5/25/2016. Defen dant's response due by 6/1/2016. Plaintiff is ordered to file a supplemental brief in support of the instant motion by 6/8/2016. Defendant's response due by 6/22/2016. Earl Underwood,Ken Riemer & John Cox are appointed as class counsel to represent thesettlement class. Jason Bennett is appointed as class representative of thesettlement class. Signed by Chief Judge William H. Steele on 5/11/2016. (tgw)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
JASON BENNETT, etc.,

)
)
)
)
) CIVIL ACTION 14-0330-WS-M
)
)
)
)

Plaintiff,
v.
BOYD BILOXI, LLC, etc.,
Defendant.

ORDER
This matter is again before the Court on the plaintiff’s motion for
preliminary approval of class action settlement agreement. (Doc. 79). After the
plaintiff and the defendant filed briefs in support of the motion, (Docs. 80, 85), the
Court entered an order questioning the appropriateness of a settlement-only class
and ordering additional briefing on that issue. (Doc. 86). The parties have
complied. (Docs. 89, 90). After careful consideration, the Court concludes that
the motion is due to be granted in part, with the remainder held in abeyance
pending further input from the parties.
BACKGROUND
The second amended complaint, (Doc. 83), alleges a violation of the
Telephone Consumer Protection Act (“the Act”), and specifically a regulation
promulgated pursuant thereto. The second amended complaint challenges the
defendant’s practice of calling persons, without their prior express written consent,
by means of an automatic telephone dialing system or with the use of a prerecorded voice message, to deliver a message including “telemarketing” or
“advertisement” as defined by the regulation. The second amended complaint
seeks certification of a nationwide class of individuals receiving such calls during

a particular period. The parties have negotiated a settlement, which calls for
certification of a nationwide class and monetary relief to successful class
claimants.
The plaintiff seeks the following relief: (1) conditional certification of the
proposed settlement class for settlement purposes only; (2) preliminary approval
of the proposed settlement; (3) approval of notice to the settlement class; (4)
appointment of a class representative and class counsel; and (5) establishment of
dates for out-outs, objections and a final fairness hearing. (Doc. 89 at 2).
I. Class Certification.
The parties seek certification under Rules 23(a) and 23(b)(3). The
requirements of these rules apply with at least equal vigor in the settlement-class
context:
Confronted with a request for settlement-only class
certification, a district court need not inquire whether the case, if
tried, would present intractable management problems, …, for the
proposal is that there is to be no trial. But other specifications of
the Rule – those designed to protect absentees by blocking
unwarranted or overbroad class definitions – demand undiluted,
even heightened, attention in the settlement context. Such attention
is of vital importance, for a court asked to certify a settlement class
will lack the opportunity, present when a case is litigated, to adjust
the class, informed by the proceedings as they unfold.
Amchem Products, Inc. v. Windsor, 521 U.S. 591, 620 (1997); accord Ortiz v.
Fibreboard Corp., 527 U.S. 815, 848-49 (1999) (“When a district court, as here,
certifies for class action settlement only, the moment of certification requires
heightened attention … to the justifications for binding the class members.”)
(internal quotes omitted).
The settlement class is defined as follows:
All persons who, since October 16, 2013 through the date the class
is certified herein, received a telephone call to a residential or cellular
telephone number initiated by, on behalf of or at the direction of Boyd
Biloxi which used an artificial and/or pre-recorded voice message or
2

was placed by an automatic telephone dialing system.
(Doc. 79 at 1). This definition echoes that proposed in the second amended
complaint, which was filed with the defendant’s blessing in association with the
instant motion. (Doc. 83 at 7).
In its earlier order, the Court noted that this class definition was
“substantially more expansive” than that proposed by the first amended complaint
and sought reassurance that this expansion was not the result of cooperation
between the parties designed to favor either the defendant or certain class
members. (Doc. 86 at 2-3). The parties have provided that assurance. Reference
to residential telephone lines, and to artificial and/or prerecorded voice messages,
first appeared in a much earlier iteration of the second amended complaint, which
pleading was struck for failure to follow Rule 15(a). (Doc. 44 at 7). Previous
references to the absence of prior express written consent were likewise omitted
from the struck second amended complaint. (Id.). Finally, while the second
amended complaint eliminates the previously pleaded restriction that class
members have received calls containing “advertisement” or “telemarketing,”
discovery reflects that all telephone communications with the proposed class
contained the same or materially similar language that the plaintiff argues (and the
defendant denies) constituted advertisement or telemarketing. (Doc. 89-1, ¶ 5).
Elimination of this qualifier thus does not affect the scope of the class, but it does
obviate resolution, judicially or in the claims process, of this essentially legal
question.
The Rule 23(a) requirements for certification of any class action are: (1)
numerosity; (2) commonality; (3) typicality; and (4) adequacy. The additional
requirements for certification under Rule 23(b)(3) are: (5) predominance; and (6)
superiority. Amchem, 521 U.S. at 613, 615.
Within the class period, the defendant’s records reflect that calls falling
within the class definition were made to 68,377 different individuals. (Doc. 89-1,
¶ 6). The numerosity requirement is thus satisfied.
3

Commonality requires that the action “must involve issues that are
susceptible to class-wide proof.” Murray v. Auslander, 244 F.3d 807, 811 (11th
Cir. 2001). As the parties acknowledge, a plaintiff must demonstrate that he or
she received one or more telephone calls at a cellular or residential number; that
the call was made using an automatic telephone dialing system or an artificial or
pre-recorded voice; that the message contains advertisement or telemarketing; and
that the plaintiff had not given prior express written consent to receive such calls.
47 C.F.R. § 64.1200(a)(2), (3). The defendant confirms that all subject calls were
made using a pre-recorded voice pursuant to a longstanding, standardized
program. (Doc. 89-1, ¶¶ 4-6). The defendant also confirms that all messages sent
during the relevant time period contained the same or materially similar language,
(id. ¶¶ 5, 9), such that all of them either did or did not contain advertisement or
telemarketing. And, while the defendant says there were several different
mechanisms by which class members voluntarily provided their telephone
numbers, whether the act of providing telephone numbers (the only basis for
consent argued by the defendant) constitutes express written consent applies
equally to all class members. The commonality requirement is thus satisfied.
The plaintiff’s claim is not meaningfully different from those of the class
members. While the plaintiff received calls only on his cellular number, the legal
requirements for cellular and residential lines are the same. As noted above, the
messages sent during the class period did not change in any legally meaningful
sense, so all such calls either did or did not contain advertisement or
telemarketing. As also noted, while the mechanism for obtaining class members’
telephone numbers varied to some degree (such that the plaintiff presumably did
not utilize all of them), the legal question whether simply obtaining a person’s
telephone number satisfies the legal requirement of express written consent to
receive otherwise impermissible calls remains constant and dispositive. The
typicality requirement is thus satisfied.

4

In light of the foregoing, there is no concern regarding the adequacy of the
class representative. Nor, given the evidence presented, (Docs. 89-4, 89-5), and
the Court’s experience with them, is there any concern regarding the adequacy of
class counsel. The adequacy requirement is thus satisfied.
The discussion of commonality reflects that essentially every factual or
legal question presented by this case can be decided on a class-wide basis. The
predominance requirement is thus satisfied.
The plaintiff says that a class action is superior to individual actions
because, between low statutory damages and the inability to recover attorney’s
fees, the costs of pursuing claims under the Act generally exceed expected
recovery, such that these claims, brought individually, have a negative value.
(Doc. 89 at 17-18). The plaintiff’s position is surprising, given that all four
iterations of his complaint – including the one filed in conjunction with the instant
motion – demand an award of attorney’s fees. (Doc. 83 at 12). Nevertheless, he
appears to be correct.1 “[T]he most compelling justification for a Rule 23(b)(3)
class action [is] the possibility of negative value suits …” Rutstein v. Avis Rent-ACar Systems, Inc., 211 F.3d 1228, 1240 n.21 (11th Cir. 2000).
Rule 23 sets forth specific matters for a court to consider in weighing the
relative superiority of a class action compared with other mechanisms. Fed. R.
Civ. P. 23(b)(3)(A)-(D). The Amchem decision renders the last of these
considerations irrelevant in the settlement class context, 521 U.S. at 620, but the
others remain intact. As to subsection (A), the negative-value issue discussed
above indicates the class members have little interest in individually controlling
the prosecution of separate actions. As to subsection (B), there is no other pending
litigation by or against the defendant regarding the challenged practice. As to
subsection (C), there is no evident undesirability in concentrating the litigation in
1

E.g., Southam v. Halsted Financial Services, LLC, 2015 WL 5215987 at *2
(S.D. Fla. 2015); Bauer v. Midland Credit Management, Inc., 2012 WL 6733649 at *6
(M.D. Fla. 2012).

5

this District, which is the class representative’s home district and which lies barely
60 miles from the casino the activities of which the challenged messages
concerned.
In its prior brief, the defendant disputed whether the plaintiff can establish
that “class members are identifiable,” which the defendant considered “a difficult
and cumbersome task in a world where cell phone subscribers frequently drop and
exchange cellular telephone numbers.” (Doc. 85 at 5). The Court in its previous
order questioned how a class action could be a superior mechanism if class
members could not be identified. (Doc. 86 at 7). The defendant now explains that
its comments only “attempted to place into context, from Defendant’s perspective,
the settlement decision process.” (Doc. 90 at 1). Perhaps, but the defendant’s
purpose in pointing out a potential obstacle to certification is not grounds for
ignoring the obstacle. The Court, however, is satisfied that no serious
identification issue exists. According to the defendant’s own witness, the program
it utilizes generates a call report that identifies the number called, the name of the
person called (all of whom were rewards program members, who had given their
names and telephone numbers to the defendant), and the address of the person
called. (Doc. 89-1, ¶ 7).2 The Court does not perceive how, under these
circumstances, it could be difficult to identify members of the class
“[A] plaintiff still bears the burden of establishing every element of Rule
23, … and a district court’s factual findings must find support in the evidence
before it.” Vega v. T-Mobile USA, Inc., 564 F.3d 1256, 1267 (11th Cir. 2009). The
Court finds that the plaintiff has established, with record evidence, every element

2

As discussed in Part III, there is some question whether the defendant has
addresses, or good addresses, for substantially all class members. Any shortcomings in
that information affect the adequacy of delivering notice by mail, not the identification of
the class members.
6

for certification under Rule 23(b)(3). The Court therefore joins others that have
found actions under the Act appropriate for class certification.3
For the reasons set forth above, and for the purposes of settlement only, the
motion for conditional certification of the proposed settlement class for settlement
purposes only is granted. The Court conditionally certifies this action as a class
action on behalf of the following settlement class:
All persons who, since October 16, 2013 through May 11, 2016,
received a telephone call to a residential or cellular
telephone number initiated by, on behalf of or at the direction
of Boyd Biloxi which used an artificial and/or pre-recorded
voice message or was placed by an automatic telephone
dialing system.
II. Preliminary Settlement Approval.
A class action can be settled “only with the court’s approval.” Fed. R. Civ.
P. 23(e). Final approval can be had only following class notice and a hearing. Id.
First, however, the Court is to “make a preliminary evaluation of the fairness of
the settlement before directing that notice be given to the settlement class.” Smith
v. William Wrigley Jr. Co., 2010 WL 2401149 at *2 (S.D. Fla. 2010).
“Preliminary approval is not binding, and it is granted unless a proposed
settlement is obviously deficient.” Id. (internal quotes omitted). “Preliminary
approval is appropriate where the proposed settlement is the result of the parties’
good faith negotiations, there are no obvious deficiencies and the settlement falls
within the range of reason.” Id.

3

E.g., C-Mart, Inc. v. Metropolitan Life Insurance Co., 299 F.R.D. 679 (S.D. Fla.
2014) (Middlebrooks, J.); Reliable Money Order, Inc. v. McKnight Sales Co., 281 F.R.D.
327 (E.D. Wis. 2012), aff’d, 704 F.3d 489 (7th Cir. 2013); APB Associates, Inc. v.
Bronco’s Saloon, Inc., 2016 WL 1394646 (E.D. Wis. 2016); Physicians Healthsource,
Inc. v. Doctor Diabetic Supply, LLC, 2014 WL 7366255 (S.D. Fla. 2014) (Seitz, J.);
Spine and Sports Chiropractic, Inc. v. Zirmed, Inc., 2014 WL 2946421 (W.D. Ky. 2014);
Strickler v. Bijora, Inc., 2012 WL 5386089 (N.D. Ill. 2012); American Copper & Brass,
Inc. v. Lake City Industrial Products, Inc., 2012 WL 3027953 (W.D. Mich. 2012), aff’d,
757 F.3d 540 (6th Cir. 2014).
7

The proposed settlement, reached after over a year of litigation and after
extensive mediation, appears on its face to be the result of good faith negotiations,
and the Court detects no obvious deficiencies. Although the settlement is for a
small fraction of the defendant’s maximum potential exposure, it appears both that
the case is legally and/or factually uncertain at a number of critical points and that
class actions under the Act (probably due at least in part to such uncertainties)
typically provide monetary relief to individual claimants more or less similar to
that proposed here. (Doc. 80-3). The Court therefore is prepared to preliminarily
approve the settlement as fair, reasonable and adequate. Due to issues addressed
in Part III, however, the Court delays issuing any such ruling.
III. Class Notice.
Before a class settlement can be finally approved, “[t]he 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). Moreover, “[f]or any class certified under
Rule 23(b)(3), the court must direct to class members the best notice that is
practicable under the circumstances, including individual notice to all members
who can be identified through reasonable effort.” Id. Rule 23(c)(2)(B). The
notice requirement, which stems from both Rule 23 and the Due Process Clause,
has two primary components: content and manner of distribution. Adams v.
Southern Farm Bureau Life Insurance Co., 493 F.3d 1276, 1286 (11th Cir. 2007).
“We think that the procedure followed by Kansas, where a fully descriptive
notice is sent [by] first-class mail to each class member, with an explanation of the
right to ‘opt out,’ satisfies due process.” Phillips Petroleum Co. v. Shutts, 472
U.S. 797, 812 (1985). In Adams, the Court approved notice distributed by first
class mail with follow-up on returned mailings (and a second mailing when
investigation revealed a corrected address), plus publication of notice in USA
Today, establishment of a toll-free telephone number to field inquiries about the

8

class action, and posting of class action information on the defendant’s website.
Id. at 1286-87.
The proposed notice here provides for distribution by first class mail. It
also provides for prompt re-mailing of any notice returned with a forwarding
address.4 It also provides for maintenance of class action information on a
dedicated website, including access to the full class notice, the settlement
agreement, and claim forms. (Doc. 79-1 at 15).5 Except for its failure to provide
for publication of notice in a national media outlet, the proposed plan for notice
distribution approximates that approved in Adams. To the extent the defendant is
in possession of reasonably recent mailing addresses for substantially all class
members (thereby obviating other forms of notice), the Court is prepared to find
that the plan provides for reasonable notice and the best notice practicable under
the circumstances, compliant with Rules 23(c), Rule 23(e) and due process.
The parties, however, have failed to establish that the defendant has such a
reliable source of addresses. The plaintiff represents vaguely that the defendant
obtained addresses when individuals joined the defendant’s rewards program,
(Doc. 89 at 6), but the settlement agreement provides only for mailing “to the
mailing address reasonably available in [the defendant’s] electronic records,”

4

Elsewhere, the settlement agreement lists the claims administrator’s duties as
including “undertaking reasonable efforts to obtain new addresses for returned mail.”
(Doc. 79-1 at 13). The Court construes this language as the parties’ representation – on
which the Court relies – that the claims administrator will take prompt and affirmative
reasonable steps to find correct addresses for returned notices.
5

The proposed notice includes a toll-free telephone number (presently blank) at
the bottom of each page, and the body of the notice states that class members can obtain a
claim form with a toll-free call. (Doc. 79-1 at 42). The claim form also invites claimants
to call a toll-free number. (Id. at 36). The settlement agreement provides that the claims
administrator will be responsible for fielding inquiries about the settlement. (Id. at 13).
The Court construes these provisions as the parties’ representation – on which the Court
relies – that a toll-free number to field inquiries will be established and maintained by the
claims administrator.

9

(Doc. 79-1 at 15), which records could be spotty,6 old,7 or poorly maintained.8
The Court is unprepared to approve the proposed plan for distribution of notice
without an adequate demonstration that first class mail is reasonably calculated to
reach substantially all class members. Failing such a demonstration, the parties
will need to devise other, effective means of distributing notice.
To pass muster, notice “must also contain an adequate description of the
proceedings written in objective, neutral terms, that, insofar as possible, may be
understood by the average absentee class member.” Twigg v. Sears, Roebuck &
Co., 153 F.3d 1222, 1227 (11th Cir. 1998) (internal quotes omitted). “Not only
must the substantive claims be adequately described but the notice must also
contain information reasonably necessary to make a decision to remain a class
member and be bound by the final judgment or opt out of the action.” Id. (internal
quotes omitted). Such information includes “the relief available, the steps
necessary to opt out, and the implications of remaining a member of the class.”
Adams, 493 F.3d at 1287.
The proposed notice, (Doc. 79-1 at 39-44), largely complies with these
requirements, but the Court notes several apparent deficiencies. First, unlike in
Adams, the notice does not advise the recipients that, following final approval of
the settlement, they will “receive a second notice offering him or her an
opportunity to participate in the settlement” by filing a claim form. 493 F.3d at
6

The plaintiff does not represent that addresses were always or routinely collected
upon entry in the rewards program, and the defendant’s interrogatory responses may be
read as suggesting that addresses were collected only when certain of the twelve portals
for entry into the program were utilized. (Doc. 89-2 at 11-13). The settlement agreement
provides that the defendant will provide the claims administrator with “last known
mailing addresses,” (Doc. 79-1 at 14), but this statement similarly offers no assurance
that current addresses exist for substantially all class members.
7

The challenged conduct occurred between October 2013 and June 2014, (Doc.
89 at 9), but addresses of longstanding rewards club members could be much older.
8

The defendant has made no representation, for example, that records of former
rewards program members have not been purged.

10

1286. It is unclear how class members will know the window for filing claim
forms has opened unless they receive such a notice.9
Second, the settlement agreement provides that all class members
(including those not submitting a claim) release (and covenant not to sue on) all
potential claims arising out of the defendant’s conduct, whether under the Act or
any other legal source. (Doc. 79-1 at 7, 19-20).10 Unlike in Adams, however, the
notice does not append the release, identify it as “critical,” or urge class members
to read it “very carefully.” 493 F.3d at 1286. While the notice does say that class
members who do nothing will give up their rights to sue “about the issue in this
case” and to participate in any lawsuit “for the claims being resolved by this
Settlement,” (Doc. 79-1 at 39, 43), it is not clear to the Court that this language
adequately warns class members regarding the scope of the rights they surrender
by not opting out.
Third, the Court notes that the proposed order presented to the Court
includes detail regarding class members’ responsibilities apparently absent from
the notice. Without pretense of being exhaustive, the Court identifies the
following as examples of this incongruity: (1) the order provides that, if a class
member submits both an objection and a request for exclusion, the latter will
control, (Doc. 79-1 at 50); (2) the order requires class members to file a notice of

9

The notice informs class members they must file a claim form “by _________,”
and the settlement agreement provides that the deadline for submitting claims is 45 days
after the “settlement notice date” (defined as the date on which class notice is sent).
(Doc. 79-1 at 5, 8, 42). Again, the Court is unclear how claim forms for participating in a
settlement could appropriately be required to be submitted before the settlement is finally
approved or how such a post-approval deadline could be reliably supplied this early in the
process.
10

The release apparently extends as well to complaints regarding the tax
consequences to class members of receiving a class award. (Doc. 79-1 at 10).

11

appearance if intending to speak at the fairness hearing, (id.);11 (3) the order
permits the parties to take expedited discovery, including by deposition, of any
objector, on penalty of waiving all objections, (id. at 51-52);12 and (4) the order
requires a request for exclusion to include a telephone number at which the class
member can be reached, provides that the omission of any requested information
from the request will render the request invalid, and further provides that a request
to exclude more than one person will be deemed void as to all. (Id. at 52-53).
The Court declines to approve the content of the proposed notice before
these and any other lurking issues are appropriately addressed by the parties.
IV. Appointment of Class Counsel.
“An order that certifies a class action must … appoint class counsel ….”
Fed. R. Civ. P. 23(c)(1)(B). After considering the matters identified in Rule
23(g)(1)(A), and for the reasons set forth in Part I, the Court concludes that Earl
Underwood, Ken Riemer and John Cox are adequate class counsel. The plaintiff’s
motion for appointment of class counsel is therefore granted. Earl Underwood,
Ken Riemer and John Cox are appointed as class counsel to represent the
settlement class.
V. Appointment of Class Representative.
Pursuant to Rule 23, the Court finds that, for purposes of the settlement,
plaintiff Jason Bennett satisfies the requirements of typicality and adequacy of
representation. The plaintiff’s motion for appointment of a class representative is

11

It is not clear to the Court why a formal notice of appearance should be required
to begin with, since the Court and the parties will be aware from the filed objection that
the class member intends to speak.
12

The Court has difficulty imagining why such discovery would be necessary in
this case or why such a draconian sanction should be applied.
12

therefore granted. Jason Bennett is appointed as class representative of the
settlement class.
VI. Establishment of Dates.
Until notice is approved, the Court finds it premature to establish the date
of the fairness hearing or deadlines for objections and requests for exclusion.13
The Court pauses, however, to offer a few observations.
First, the settlement agreement establishes the deadline for objections and
requests for exclusion as 45 days from the “settlement notice date,” which is
defined to require mailing of class notices within 30 days after the preliminary
approval order is entered. (Doc. 79-1 at 6, 8). The Court therefore anticipates
establishing these deadlines as the date 75 days after entry of the preliminary
approval order.14
Second, while the submitted documents generally contemplate that an
objection or request for exclusion must be “postmarked” by the deadline, at least
once in the proposed notice recipients are advised simply to “mail” their request
for exclusion by the deadline. (Doc. 79-1 at 43). This term introduces
unnecessary confusion, and the language should be modified to parallel that used
with respect to objections. (Id.).

13

The plaintiff has not moved the Court to establish a deadline for submitting
claim forms. (Doc. 79; Doc. 80 at 13; Doc. 89 at 2). As discussed in Part III, it is not
clear that a deadline could be established at this point in the process or without reference
to the mailing of a second notice, which notice is not anticipated in the parties’ filings.
14

The proposed preliminary approval order contemplates that the claims
administrator will file proof that notice was sent, but it delays such filing until 14 days
before the fairness hearing. (Doc. 79-1 at 54). This is too late; if the notice is not
accomplished within the 30-day period provided, the time for filing objections and
requests for exclusion may be rendered unacceptably short. Therefore, the claims
administrator will be required to file proof of the fact and time of mailing the notice
within 35 days after the preliminary approval order is entered.

13

VII. Additional Comments.
The Court has resolved as much of the plaintiff’s motion as it can at this
time. Since the parties must address the Court’s stated concerns regarding notice,
they are encouraged to review the notice, and all their submitted documents, with
fresh and critical eyes and to self-identify and correct difficulties and
inconsistencies rather than await their discovery and disapproval by the Court.15
As a guide to these endeavors but not as an exhaustive compilation, the Court
notes the following matters.
First, the settlement agreement contemplates the Court’s approval of the
claim form and of the claims administrator. (Doc. 79-1 at 4-5). The plaintiff’s
motion, however, does not request such relief. Nor have the parties actually
addressed the proposed form or administrator or demonstrated why their approval
would be appropriate.16
Second, the settlement agreement and proposed order provide for automatic
rejection of requests for exclusion that do not include every item of information
listed in the notice. (Doc. 79-1 at 17, 52). If requests for exclusion are to be so
ruthlessly evaluated, it may be that a form request for exclusion should be made

15

As the Court has previously noted, (Doc. 86 at 7-8), the stakes in this litigation
– financial and otherwise – should provide adequate incentive for the parties to do so.
Should any inconsistencies or anomalies be discovered after entry of a preliminary order
of approval, the Court anticipates resolving them most favorably to the class and class
members.
16

For example, the Court has been provided no indication of the experience and
qualifications of the proposed claims administrator to engage in such an undertaking.
Nor have the parties explained the incongruity between the claim form (which requires
the claimant to identify a single residential or cellular telephone number that received a
call) and the settlement agreement (which contemplates the claimant may identify
“number(s)” called). (Doc. 79-1 at 16, 36). As worded, the claim form appears to invite
claimants to guess which of their multiple telephone numbers was called two to three
years ago, with the penalty for guessing wrong being automatic denial of their claim. (Id.
at 15).

14

available and advertised so as to minimize the chances a class member will
inadvertently fail to supply all required information.
Third, the settlement agreement and proposed order require that any
objection must include “proof of receipt of a residential or cellular telephone call
from” the defendant. (Doc. 79-1 at 18, 50). The proposed notice mentions no
such requirement, (id. at 43), and it is difficult to see why there should be such an
unrealistic pre-requisite to voicing an objection (other than the improper one of
precluding objections).17 The defendant has records of each telephone number
called, and an objection must list the numbers called,18 so the parties are perfectly
capable of demonstrating that a particular objector has no standing to object.
Fourth, the submitted documents require objectors not only to file their
objections but to serve them by mail on counsel for both sides. (Doc. 79-1 at 43,
51). The Court does not perceive the point of requiring service by mail of a
document that will be filed and therefore served electronically.
Fifth, the proposed order requires the claims administrator to file certain
proofs with the Court fourteen days before the fairness hearing. (Doc. 79-1 at 54).
As discussed in note 14, supra, proof of the fact and time of mailing the notice
will have to be filed much sooner than that. In addition, given its centrality to the
question whether the dictates of due process and Rule 23 have been satisfied, the
claims administrator will also be required to file periodic reports concerning the
number of returned notices, the efforts the administrator has made to identify
correct addresses and re-send the returned notices, and the promptness with which
it has done so.

17

It seems highly unlikely that many class members could provide “proof” that
they received a call from the defendant two to three years ago, at all or without investing
substantial resources in the attempt.
18

The notice suggests the objector must identify a single telephone number.
(Doc. 79-1 at 43). As discussed in in note 16, supra, this does not appear to be an
appropriate restriction.
15

Sixth, the settlement agreement and proposed order purport to authorize the
parties to modify the settlement agreement, the claim form, the notice, and other
documents without approval of the Court or notice to the class. (Doc. 79-1 at 11,
55). This provision appears to be facially inconsistent with paragraph 15.10 of the
settlement agreement, which prohibits amendment of the settlement agreement
unless approved by the Court. (Id. at 24). More fundamentally, the Court is
unpersuaded that it should permit the parties to undo the Court’s careful screening,
to the potential disadvantage of class members, by altering provisions after their
approval by the Court.19
CONCLUSION
For the reasons set forth above, the plaintiff’s motion for conditional class
certification, appointment of class counsel, and appointment of class
representative is granted.
The plaintiff is ordered to file and serve, on or before May 25, 2016, a
fully supported motion for approval of the claim form and approval of the claims
administrator. The defendant may join in this motion. If it does not, the defendant
is ordered to file and serve its response to the motion on or before June 1, 2016.
The plaintiff is ordered to file and serve, on or before June 8, 2016, a
supplemental brief in support of the instant motion that fully addresses all the
concerns identified herein and all other matters the plaintiff believes necessary and
appropriate to resolution of his motion. The plaintiff is ordered to attach as
exhibits thereto an amended claim form, an amended notice, a second notice, and
19

In a related vein, the settlement agreement purports to reserve to the parties the
ability to relieve the claims administrator of complying with any of the terms of the
agreement regarding the administrator’s services if they “would unreasonably hinder or
delay such processes or make them more costly.” (Doc. 79-1 at 14). While there may be
some legitimate uses for such a provision, as written it would appear to authorize the
parties to decide what notice is adequate and perhaps work other mischief as well. The
Court does not expect to approve such a provision, at least without substantial
modification.
16

an amended preliminary order of approval, using highlighting, redlining and/or
other clear notations of alterations made to the original versions.20 The defendant
may join in this filing. If it does not, the defendant is ordered to file and serve its
response to the plaintiff’s filing on or before June 22, 2016.
DONE and ORDERED this 11th day of May, 2016.
s/ WILLIAM H. STEELE
CHIEF UNITED STATES DISTRICT JUDGE

20

The plaintiff is further ordered to comply with the District’s requirements for
submitting a Word version of proposed orders to chambers via e-mail.
17