Tech Instrumentation, Inc. v. Eurton Electric Company, Inc.

Filing 72

OPINION and ORDER by Judge Marcia S. Krieger on 9/13/2019, re: 65 Tech's Motion for Approval of Class Notice is GRANTED IN PART and DENIED IN PART. Tech shall distribute notice to the class members on the terms set forth herein.(sphil, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Chief Judge Marcia S. Krieger
Civil Action No. 16-cv-02981-MSK-KMT
TECH INSTRUMENTATION INC., individually and on behalf of all others similarly
situated,
Plaintiff,
v.
EURTON ELECTRIC CO. INC.,
Defendant.
______________________________________________________________________________
OPINION AND ORDER GRANTING IN PART
MOTION TO APPROVE CLASS NOTICE
______________________________________________________________________________
THIS MATTER comes before the Court pursuant to the Plaintiff’s (“Tech”) Motion to
Approve Class Notice (# 65), the Defendant’s (“Eutron”) response, and Tech’s reply (# 70).
According to the Complaint, in 2016, Eutron sent two unsolicited fax transmissions to
Tech. Tech alleges that this violated the Junk Fax Protection Act (“JFPA”), 47 U.S.C. § 277.
Alleging that Eutron did the same to many others, Tech sought to assert its JFPA claim on behalf
of a class of affected persons pursuant to Fed. R. Civ. P. 23. The Court subsequently granted (#
47) certification of a class consisting of “any person who: (i) received a cold call from Eutron
pursuant to its three-step procedure; and (ii) is listed on a list prepared by Eutron and supplied to
WestFax; and (iii) received on or more faxes sent by Eutron or WestFax” between specified
dates.
Tech now moves (# 65) for approval of a notice to be sent to all class members, advising
them of the litigation. Tech proposes that class members be sent notice in the form of a

summary postcard, with full notice posted on a linked website, and that notice be disseminated to
Eutron’s entire customer list. Eutron opposes the request in certain respects, proposing changes
to certain language on the summary postcard; noting that the parties have yet to agree upon a full
notice; and contending that notice should be disseminated not based on the customer list, but
rather, based on its “fax logs” from 2017 (reflecting faxes actually sent) and for the remaining
years of the class period – where no fax logs exist – notice be given only to those on the “fax
list” that Eutron maintains, namely, its “running list of entities to send fax advertisements to.”
The Court has considered the requirements of Fed. R. Civ. P. 23(c)(2) and the record in
this case. The Court agrees that a summary postcard and full notice posted on a website are an
adequate means to notify and inform members of the class. The Court finds that the summary
postcard proposed by Tech (as modified on the terms set forth in Tech’s reply brief) adequately
advises class members, with one exception. The Court finds that Eutron’s proposed language for
the “What Are Your Options?” section more clearly and comprehensibly explain the choices that
class members have and how to exercise them, and the Court directs that Tech’s proposed
summary postcard be modified to substitute Eutron’s proposed “Options” section for that
proposed by Tech.
The question of to whom the notice is disseminated is more complex. Tech proposes to
send notice to all known customers of Eutron. Eutron proposes notice only to those who were
known to have been faxed in 2017 and those who are listed on a “fax list” kept by Eutron (but
which, by Eutron’s own apparent admission, would not include those who received unwanted
faxes and asked to be removed from the list). It seems to the Court that the best scope of notice
would be bounded by class definition itself: element (ii) of the class definition requires that class
members be “listed on a list prepared by Eutron and supplied to WestFax,” and thus, notice

should be sent to (and only to) the persons on that list. However, it is not clear that a specific list
of this type actually exists: the Court’s review of Tech’s Motion for Class Certification (# 36)
seems to indicate that WestFax has no such document(s) and that Eutron has deleted any records
that it might have that meet this description.1
The next best method of ensuring sufficient, but not needlessly overbroad, dissemination
to class members might be the procedure identified by Tech in its Motion for Class Certification.
There, Tech explained that Eutron has produced three collections of information that “can be
used to locate class members”: (i) its “accounting database system,” that lists all persons and
entities (including fax numbers) that have done business with Eutron; (ii) the “potential
customer/actual customer spreadsheet” that “captures both potential customers as well as actual
customers” (including actual customers who might not have been entered into the accounting
database); and (iii) Eutron’s “fax list,” which Tech concedes “represents a significant portion of
the class in this case,” but which may be either over-inclusive (because it includes persons who
may have expressly authorized Eutron to send fax advertisements) or under-inclusive (because it
omits persons who received unsolicited faxes and who contacted Eutron asking to be removed).
In its class certification motion, Tech argued that problem of under-inclusiveness of the fax list
“poses no problem,” because persons removed from the fax list were maintained in the
accounting database, allowing Tech to do “a comparison between” the fax list and the other
records produced by Eutron to “determine which entities have been removed from the fax list.”
(Tech notes that this process is “without perfect accuracy,” but does not offer any estimation as
to the magnitude of potential error.) The problem of over-inclusiveness – the inclusion of

It may ultimately be that this element of the class definition must be modified if the list in
question does not exist and cannot reliably be reconstructed. The Court need not address that
issue at this time, however.
1

persons who agreed to receive Eutron’s fax advertisements – remains, but use of the fax list
poses less of an over-inclusiveness concern than does Tech’s proposal in the instant motion to
disseminate notice to all of Eutron’s customers on its customer list(s). Notice sent to the full list
of customers is likely to include those who never gave Eutron a fax number at all, and thus never
received any fax transmissions, wanted or unwanted. Reliance on the fax list, as augmented by
the technique described by Tech to restore deleted entries, thus comes closest to ensuring that
notice is set to all persons who might have received faxes (wanted or otherwise) from Eutron.
Accordingly, the Court directs that Tech’s notice of this action be sent to the following
persons or entities: (i) those listed on Eutron’s 2017 fax logs; (ii) those listed on any existing
iteration of Eutron’s “fax list”; and (iii) those who do not meet either of the first two criteria, but
who are noted as having a fax number in either Eutron’s accounting database or on its potential
customer/actual customer spreadsheet.
The Court further approves of the time frames proposed by Tech for the distribution of
notice and for the receipt of any opt-out notices.
Accordingly, Tech’s Motion for Approval of Class Notice (# 65) is GRANTED IN
PART and DENIED IN PART. Tech shall distribute notice to the class members on the terms
set forth herein.
Dated this 13th day of September, 2019.
BY THE COURT:

Marcia S. Krieger
Senior United States District Judge