Cin-Q Automobiles, Inc. v. Buccaneers Limited Partnership et al
Filing
409
ORDER denying as moot 348 Motion to Seal; denying as moot 349 Motion for Extension of Time to File; granting in part and denying in part 350 Motion for Fax Notice and Publication Notice; denying as moot 354 Motion for Leave to File Documen t; granting in part and denying in part 381 Motion to Address Notice Program; and granting 393 Motion to Seal. Additionally, the Court directs the Clerk to seal Exhibit 1 in Plaintiffs' Response in Opposition to Defendant's Motion to Address the Notice Program (see Doc. 388-1). See Order for further details. Signed by Magistrate Judge Anthony E. Porcelli on 9/2/2022. (BMM)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
CIN-Q AUTOMOBILES, INC., et al.,
Plaintiffs,
v.
Case No. 8:13-cv-1592-AEP
BUCCANEERS LIMITED
PARTNERSHIP,
Defendant.
/
ORDER
On August 31, 2022, this cause came before the Court for an evidentiary
hearing regarding the Motion to Address for Purposes of the Notice Program the
Limitation of Reverse Lookups Under the Circumstances of this Case filed by
Defendant Buccaneers Team LLC f/k/a Buccaneers Limited Partnership (“BTL”
or “Defendant”) (Doc. 381) and upon Plaintiffs Cin-Q Automobiles, Inc. and
Medical & Chiropractic Clinic, Inc. (collectively, “Cin-Q” or “Plaintiffs”) Motion
to order fax notice and publication notice (Doc. 350). 1 The heart of the issue
presented by the parties’ competing motions was how to identify absentee Class
At the hearing, the Court also addressed Defendant’s Unopposed Motion to Seal
Documents attached to Defendant’s Motion for an Extension of Time (Doc. 348),
Defendant’s Motion for Extension of Time to File/Submit its memorandum regarding
ascertainability and supplemental notice (Doc. 349), Defendant’s Motion for Leave to file
a response to Plaintiff’s Request to Alter and Amend the Settlement Agreement by using
for Purposes of Mailed Notice the Reverse Lookup Unilaterally Directed by Class Counsel
(Doc. 354), and Defendant’s Motion to Seal Documents and Testimony (Doc. 393).
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Members to receive direct notice. For the following reasons and those stated at the
hearing, direct notice shall be provided in the manner and to the extent outlined
herein.
I.
Background
The Court has fully outlined the extensive history of this case in its previous
Order granting preliminary approval of the class action settlement and notice to the
class (Doc. 343). However, as it pertains to the issues addressed at the evidentiary
hearing, it is important to note events transpiring after the Court preliminarily
approved the class settlement.
On March 29, 2022, the Court granted Plaintiff’s unopposed motion for
preliminary approval of class settlement (Doc. 343). At that time, the Court
approved the proposed Notice program as it appeared to satisfy the requirements of
Federal Rule of Civil Procedures 23(c)(2)(B) (Doc. 343, at 73). The Notice program
in the Settlement Agreement, which the Court incorporated into its Order, provides
for Cin-Q and BTL to provide Notice to Class Members via U.S. mail to the
addresses associated with the fax numbers at issue and by Settlement Website (Doc.
324-1, at 17-18). The Settlement Administrator, Epiq Class Action & Claim
Solutions, Inc. (“Epiq” or “Settlement Administrator”), would obtain the mailing
addresses through a reverse-lookup of the fax numbers (see Doc. 324-1, at 19). The
Claim Form would be included with the mailed Notice and would also be accessible
to download from the Settlement Website. Additionally, the Settlement Agreement
leaves to the Court’s discretion whether to provide notice by facsimile and/or
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publication, following issuance of the notice via U.S. mail and by Settlement
Website. The Court noted that if it determined at a later time that the combination
of providing notice by posting it on the Settlement Website and by mailing it
through the reverse-lookup process lacked efficacy in sufficiently notifying Class
Members, the Court would order that notice be provided by other means, including
by publication and/or by facsimile (Doc. 343, at 74).
According to the Settlement Agreement and the Court’s Order, within ten
days of the preliminary approval Order, Cin-Q and BTL were to provide Epiq with
the records identifying the fax numbers to which the facsimile advertisements
offering tickets to Tampa Bay Buccaneers games were allegedly sent, which Epiq
would then use to locate addresses for Class Members. By May 31, 2022, the parties
were directed to file simultaneous briefing as to whether the Court should order
additional publication and/or fax notice based on the results of the reverse-lookup
process.
What ensued was multiple filings by the parties and hearings to address
concerns over the results of Epiq’s reverse lookup, where they used TransUnion as
a vendor. Ultimately, the Court ordered that a second reverse lookup be conducted
by Epiq. Epiq conducted a second reverse lookup using LexisNexis as a vendor,
which led to BTL filing a motion to address the reverse lookups for the purposes of
the Notice Program (Doc. 381).
II.
Discussion
Following preliminary approval of a settlement, Rule 23 dictates that the
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court “direct notice in a reasonable manner to all class members who would be
bound by the proposal.” Fed. R. Civ. P. 23(e)(1). Where a class is certified under
Rule 23(b)(3), albeit preliminarily for our purposes, “the court must direct to class
members the best notice that is practicable under the circumstances, including
individual notice to all class members who can be identified through reasonable
effort.” Fed. R. Civ. P. 23(c)(2)(B). The notice must clearly and concisely include
the following information in plain, easily understood language:
(1) the nature of the action;
(2) the definition of the class certified;
(3) the class claims, issues, or defenses;
(4) that a class member may enter an appearance through an attorney
if the member so desires;
(5) that the court will exclude from the class any member who requests
exclusion;
(6) the time and manner for requesting exclusion; and
(7) the binding effect of a class judgment on members under Rule
23(c)(3).
Fed. R. Civ. P. 23(c)(2)(B)(i)-(vii). In the Settlement Agreement Cin-Q and BTL
agreed that the parties would provide the Settlement Administrator records
identifying the fax numbers which the facsimile advertisements offering tickets for
Tampa Bay Buccaneer games were allegedly sent (Doc. 324-1, at 17). The
Settlement Administrator would then use these records to determine the mailing
addresses for as many members of the Settlement Class as possible (Doc. 324-1, at 17-18).
The parties agreed to work cooperatively with the Settlement Administrator to
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mutually agree upon the most practicable and reasonable methods under the
circumstances by which the addresses of the members of the Settlement Class could
be derived in an efficient and reasonable manner (Doc. 324-1, at 18). Then, the
mailing addresses would be updated with the United States Postal Service’s
National Change of Address Database (Doc. 324-1, at 18). Additionally, the parties
agreed that the Court would decide whether to order additional forms of notice
through facsimile and/or publication notice if the identity and mailing address of
absent Class Members could not be reasonably determined from the reverse-lookup
process in a manner consistent with existing requirements for notice (Doc. 324-1, at
18-19).
According to Loree Kovach, Epiq’s Vice President, Epiq conducted the
initial reverse lookup using a product by TransUnion, which yielded results for
40,940 unique numbers out of the original 131,011 unique fax numbers being
matched with at least one name and mailing address (Doc. 380-1, at 4-5). Out of
those 40,940 matched numbers, approximately 22,799 unique fax numbers had
matches to multiple names and addresses while the remaining approximately
18,141 unique fax numbers matched a single name and address (Doc. 349-11, at 2).
Thus, approximately 90,071 unique fax numbers did not match to a name and
address (see Doc. 380-1, at 4). Cin-Q raised multiple issues with the TransUnion
results, including allegations that TransUnion did not have a robust database of
business numbers and that one of the named Plaintiffs did not appear as a match in
the TransUnion reverse lookup.
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At the hearing, Ms. Kovach testified that TransUnion has a product that is
the industry standard for running reverse lookups in this type of circumstances,
where the reverse lookup relates to a specific time period and thus, viewed as more
reliable in these circumstances. As a result of the Court’s order to conduct a second
reverse lookup, Epiq contracted LexisNexis to conduct a reverse lookup because it
has both an individual and consumer database. According to Ms. Kovach, although
LexisNexis does not have a similar product to TransUnion that can isolate a search
for ownership or association of a phone line to an individual or business within the
relevant time period, LexisNexis created a proxy solution. The proxy solution was
that LexisNexis would run the search for potential owners or users associated with
each number and then look back at their 2009 and 2010 databases and confirm that
the identified users existed during the relevant time period (see Docs. 381-3, at 2;
398-3). As a result of the LexisNexis search, of the 131,011 original numbers,
approximately 51,395 unique numbers were matched with at least one name and
mailing address (Doc. 380-1, at 4-5). The record is unclear as to exactly how many
single matches and multiple matches resulted from the LexisNexis search and the
parties failed to specifically address this at the hearing.
According to Ms. Kovach, after comparing the TransUnion and LexisNexis
results, a total of 83,698 unique original numbers were matched with at least one
name and mailing address (Doc. 380-1, at 5). BTL now argues that sending direct
mail notice to all of the reverse lookup matches is overinclusive.
In re Nissan Motor Corp. Antitrust Litig., 552 F.2d 1088 (5th Cir. 1977) is
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informative in the instant case. In In re Nissan, the Fifth Circuit held that notice to a
class of original U.S. retail purchasers of Datsun vehicles by way of mail notice to
all current registered Datsun owners was both overinclusive and underinclusive. 552
F.2d at 1099. The court reasoned that while sending direct notice to all registered
Datsun owners would include class members who were original retail purchasers
that kept their vehicles, it also included present owners and it was impossible to
estimate how many absentee class members would receive direct notice. Id.
Moreover, the court found that “[a] more fundamental defect” with the notice was
that the class notice was underinclusive in that class members who no longer owned
the vehicles they purchased would not receive direct notice. Id. The court reasoned
that because the car dealerships had records of sales during the relevant time period,
direct notice based on the information on those records was the best practicable
under the circumstances. Id.
In striking the balance between protecting the rights of absent class members
and making Rule 23 workable, courts have held that it is not necessary to send
individual notices to an overinclusive group of people simply because that group
contains some additional class members whose identifies are unknown. See, e.g., In
re “Agent Orange” Product Liab. Litig., 818 F.2d 145, 169 (2d Cir. 1987) (rejecting
argument that individual mail notice should have been provided to all 2.4 million
Vietnam Veterans, because there were “far fewer than that number exposed to
Agent Orange” and thus notice would have been “considerably overbroad”); In re
Domestic Air Transportation Antitrust Litigation, 141 F.R.D. 534, 539-46 (N.D. Ga.
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1992) (sending notice to larger group “would most likely confuse the recipients and
encourage [responses] by non-class members”); Pierce v. Novastar Mortg., Inc., 2007
WL 505670, at *3 (W.D.Wash. Feb. 12, 2007) (“[I]ndividual notice . . . creates a
greater expectation than notice by publication, and the plaintiffs should make every
effort to provide such notice only to class members.”); but see Macarz v. Transworld
Sys. Inc., 201 F.R.D. 54, 59-61 (D. Conn. 2001) (requiring notice to each person on
list in defendant’s possession where list was approximately 25 percent overinclusive
but “approximately three-quarters of the notices sent to the names on the proposed
list would result in notice to all class members”).
As discussed at the hearing, in contemplating what Cin-Q and BTL agreed
to and balancing the due process rights of the absentee Class Members and BTL,
the Court finds that direct mail notice remains appropriate in this case. However,
in considering the reliability and verifiability of the reverse lookups and the unique
circumstances presented by this case where the facsimile advertisements were
allegedly sent more than a decade ago, the Court must direct the best notice that is
practicable under the circumstances to all Class Members. Therefore, the Court
finds that it is appropriate to send direct mail notice to all individuals and entities
identified as a single match to a unique fax number in the TransUnion reverse
lookup, as this appears to be the most reliable set of results from the reverse lookup.
Additionally, direct mail notice to all individuals and entities identified as one of
multiple matches to a unique fax number in the TransUnion reverse lookup is also
appropriate because the TransUnion reverse lookup is the industry standard for this
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type of search and it is focused on identifying individuals and entities who were
associated with the phone number during the relevant time period. While the Court
recognizes that direct notice to multiple individuals associated with the same unique
fax number during the relevant time period may be somewhat overinclusive, to not
send notice to those multiple matches would deprive direct notice to Class
Members. Moreover, the Court finds that direct mail notice to all individuals and
entities identified as a single match to a unique phone number in the LexisNexis
reverse lookup is also appropriate. Although the Court notes that the LexisNexis
reverse lookup is generally less reliable than the TransUnion reverse lookup in the
instant circumstances, given that one of the named Plaintiffs was not identified in
the TransUnion reverse lookup, but according to Class Counsel, was the single
match for a unique fax number in the LexisNexis reverse lookup, the Court finds
that the single matches would include more Class Members and be more easily
verifiable. Based upon the representations from the parties, although not clear from
the record, the sum of all matches from TransUnion and single matches from
LexisNexis result in potentially delivering direct notice to approximately 63 percent
of the class. This, in addition to publication notice as contemplated in the Settlement
Agreement, will reasonably notify Class Members.
There are multiple limitations in place for the claims process, including that
the claimant must provide the fax number associated with the claim (which will not
be included in the notice) and certify under penalty of perjury that the information
they have provided in the Claim Form is true and correct (Doc. 324-1, at 47).
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Additionally, Epiq will reject any claim that does not substantially comply with the
instructions on the Claim Form or the terms of the Agreement or is postmarked
later than the Claim Deadline. The decision of Epiq as to whether a claim is valid
is final and binding upon the parties, subject to an appeal by a party or any absent
Class Member, which the parties will endeavor to resolve without Court
intervention (Doc. 343, at 39). Any disputes regarding such determination,
including as to whether a claim is fraudulent or valid, is subject to review by the
Court. The Court finds that these are sufficient safeguards against non-class member
claims while reaching as many Class Members as reasonably possible.
Cin-Q’s request for facsimile notice (Doc. 350) is not appropriate because the
safeguards referenced above would fail to provide BTL with adequate safeguards
against claims by non-class members and the record does not support that notice by
facsimile would be reliable in reaching Class Members.
At the hearing, Intervenors argued that the Court should consider
independent advice from a notice expert in order to determine the best possible
notice with the furthest reach. The Court found the request to be a prudent one, but
the Intervenors did not provide the Court with supporting authority for its
proposition that the Court has the authority to amend the Notice Program outside
the bounds of the Settlement Agreement and the Court’s preliminary approval
Order. As such, the Court directs the Intervenors to brief the issue by September 9,
2022.
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Accordingly, it is hereby
ORDERED:
1.
Defendant’s Motion to Address for Purposes of the Notice Program
the Limitation of Reverse Lookups Under the Circumstances of this Case (Doc.
381) is GRANTED IN PART AND DENIED IN PART as follows:
a.
The Settlement Administrator shall provide Notice to all of the
matched results from the TransUnion reverse lookup and to the single matched
results from the LexisNexis reverse lookup. The Settlement Administrator shall
engage in its standard process of verification, including but not limited to
deduplication and updating mailing addresses with the National Change of Address
Database, and any other process contemplated in the Settlement Agreement.
2.
Plaintiffs’ Motion to order fax notice and publication notice (Doc. 350)
is GRANTED IN PART AND DENIED IN PART. The motion is granted to the
extent that Publication Notice shall occur as contemplated in the Settlement
Agreement and as ordered at the hearing, and otherwise denied.
3.
Defendant’s Unopposed Motion to Seal Documents attached to
Defendant’s Motion for an Extension of Time (Doc. 348), Defendant’s Motion for
Extension of Time to File/Submit its memorandum regarding ascertainability and
supplemental notice (Doc. 349), and Defendant’s Motion for Leave to file a
response to Plaintiff’s Request to Alter and Amend the Settlement Agreement by
using for Purposes of Mailed Notice the Reverse Lookup Unilaterally Directed by
Class Counsel (Doc. 354) are DENIED AS MOOT.
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4.
Defendant’s Motion to Seal Documents and Testimony (Doc. 393) is
GRANTED to the extent that BTL’s Exhibit 3A was admitted into evidence at the
hearing and given that the document includes the results of the reverse lookups
including personal identifying information and the class fax numbers at issue in this
case, it is appropriate to have those documents sealed. For the same reasons, BTL
moved to seal Exhibit 4 (Parts 1-3) in Plaintiffs’ Motion to Certify (see Docs. 207-5;
207-6; 207-7), which the Court granted. The Court sua sponte orders that Exhibit 1
in Plaintiffs’ Response in Opposition to Defendant’s Motion to Address the Notice
Program (see Doc. 388-1) shall be sealed as it contains some fax numbers of the
Class Members. Absent further order of the Court, these filings shall remain under
seal until the case is closed.
5.
The parties are directed to review the docket for any additional
disclosures of the class fax numbers and if found, shall file a motion requesting those
matters be sealed pursuant to Local Rule 1.11.
6.
The Intervenor may file a legal memorandum regarding the issues
raised at the hearing on or before September 9, 2022.
DONE AND ORDERED in Tampa, Florida, on this 2nd day of September,
2022.
cc:
Counsel of Record
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