Cin-Q Automobiles, Inc. v. Buccaneers Limited Partnership et al

Filing 475

ORDER granting in part and denying in part 451 Motion Regarding Claims Process, granting in part and denying in part 454 & 458 Motion to Compel Compliance with Section VIII of the Settlement Agreement. See Order for further details. Signed by Magistrate Judge Anthony E. Porcelli on 7/26/2023. (BMM)

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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
This cause comes before the Court upon the following filings: Motion
Regarding the Claims Process by Plaintiffs Cin-Q Automobiles, Inc. (“Cin-Q”) and
Medical & Chiropractic Clinic, Inc. (“M&C”) (collectively, “Plaintiffs”) (Doc. 451),
response in opposition thereto by Defendant Buccaneers Team LLC f/k/a
Buccaneers Limited Partnership (“BTL” or “Defendant”) (Doc. 461); and
Defendant’s Motion to Compel Compliance with Section VIII of the Settlement
Agreement (Doc. 454), 1 Plaintiffs’ response in opposition thereto (Doc. 459), and
Defendant’s reply (Doc. 467). 2 On July 17, 2023, the Court held a hearing on these
matters. For the reasons stated at the hearing and articulated below, Plaintiffs’
Motion is granted in part and denied in part and Defendant’s motion is granted in

Defendant also filed an unredacted version of the motion under seal (Doc. 458).
The Intervenors, Technology Training Associates, Inc., filed a response to both Plaintiffs’
and Defendant’s motions (see Doc. 460).

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part and denied in part.
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). Since then, the Court has held multiple hearings and the parties
have briefed multiple issues relating to the notice program (see e.g., Docs. 349, 350,
359, 377, 381, 384, 409, 413, 414, 418-20). Of note, in an Order on September 2,
2022, this Court addressed the notice program and the extensive effort to protect the
rights of absent class members under the mandates of Rule 23 (see Doc. 409, at 310). In contemplating what Plaintiffs and Defendant agreed to in the Settlement
Agreement and in consideration of the due process rights of the absentee Class
Members and BTL, this Court found that direct mail notice remained appropriate
in this case (Doc. 409, at 8). However, considering the reliability and verifiability of
the reverse lookups conducted by third-party vendors TransUnion and LexisNexis,
and the unique circumstances presented by this case where the facsimile
advertisements were allegedly sent more than a decade ago, this Court found that
the best notice that was practicable under the circumstances was to send direct mail
notice to all individuals and entities identified as a single match or as one of multiple
matches to a unique fax number in the TransUnion reverse lookup and direct mail
notice to all individuals and entities identified as a single match to a unique fax
number in the LexisNexis reverse lookup, in addition to publication notice (Doc.
409, at 8-9).

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While the Court recognized 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 (Doc. 409, at 9). Notably, this Court
highlighted that multiple safeguards exist in the claims process, including that the
claimant must provide the fax number associated with the claim (which was not
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 409, at 9-10; see also Doc.
324-1, at 47). Additionally, pursuant to the Settlement Agreement, the Settlement
Administrator, Epiq, can reject any claim that does not substantially comply with
the instructions on the Claim Form or the terms of the Agreement or was
postmarked later than the Claim Deadline (Doc. 324-1, at 19). 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. 324-1, at 19). Any disputes regarding such
determination, including as to whether a claim is fraudulent or valid, is subject to
review by the Court (Doc. 324-1, at 19). At the time, this Court found that these
were sufficient safeguards against non-class member claims while reaching as many
Class Members as reasonably possible (Doc. 409, at 10).
Fast-forward several months and we find ourselves in another dispute, this
time over the claims process. Plaintiffs seek an order clarifying that the Settlement
Agreement does not limit Settlement Class Member’s recovery to five faxes and a

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maximum award of $615, even if the claimant received faxes at more than one valid
fax number. Moreover, Plaintiffs seek an order directing Epiq to send a defect notice
or a request for additional information to five categories of claimants that the parties
have already agreed to. On the other hand, BTL alleges that the claims process has
been plagued with numerous issues and Epiq should further investigate almost
every claim filed.
II.

Discussion
As previously noted, Plaintiffs move for an order clarifying that the

Settlement Agreement does not limit Settlement Class Members from recovering
for more than five faxes and a maximum of $615 (Doc. 451). Essentially, Plaintiffs
argue that there is no cap to the number of faxes a Settlement Class Member can
recover an award for other than that they cannot recover for more than five faxes to
one unique fax number. Plaintiffs also seek an order directing Epiq to send a defect
notice or a request for additional information to claimants in five agreed-upon
categories. Finally, Plaintiffs seek an order rejecting BTL’s proposed additional
“defect” categories, which would result in every person who filed a claim during the
claims process to receive a defect notice or request for additional information (Doc.
451). In its motion, BTL seeks compliance with section VIII of the Settlement
Agreement, in particular, alleging rampant fraud in the claims process and a need
to seek more information from all claimants. The Court will address these issues in
turn.
A. Recovery Limits

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The Settlement Agreement explains the benefits to the class as it should be
disbursed from the Settlement Fund (see Doc. 324-1, at 12). In terms of the
disbursement amount, the Settlement Agreement states the following:
Subject to the terms of this Agreement, Settlement Class Members who
received or were successfully sent in 2009 or 2010 one or more
unsolicited facsimile advertisements relating to tickets for Tampa Bay
Buccaneers games sent by or on behalf of BTL and who submit a Valid
Claim shall be eligible to receive up to:
(i)
(ii)
(iii)
(iv)
(v)

$350 for the first such facsimile;
$125 for the second such facsimile;
$90 for the third such facsimile;
$25 for the fourth such facsimile; and
$25 for the fifth such facsimile.

Section IV(B), Settlement Agreement (Doc. 324-1, at 13) (emphasis added). The
term “Valid Claim” is defined in the Settlement Agreement as “a timely and fully
completed Claim Form submitted by a Settlement Class Member as more fully
described in Section VIII” (Doc. 324-1, at 12). According to Section VIII of the
Settlement Agreement, in order to file a Valid Claim, Settlement Class Members
must take the following steps:
(i)
(ii)
(iii)

Complete a Claim Form, providing all of the information
required by the Settlement Agreement and the Claim Form;
Sign the Claim Form under penalty of perjury; and
Return the completed and signed Claim Form to the Settlement
Administrator on or before the Claim Deadline.

Section VIII (B) (Doc. 324-1, at 19). The Settlement Agreement does not mention
the possibility of a Settlement Class Member submitting a separate Claim Form for
every fax number or even insinuate that a Settlement Class Member would be
eligible to recover more than $615. In fact, the Settlement Agreement explicitly

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states that Settlement Class Members may be eligible to receive up to $615 if they
received five faxes from BTL. The Settlement Agreement does not appear to
contemplate the amount of fax numbers the Settlement Class Member had at the
time, just the number of faxes received. This can be seen by the limited nature in
which “fax number(s)” is mentioned in the Settlement Agreement; references to fax
number(s) primarily appear in the context of identifying Settlement Class Members
(see Doc. 324-1, at 16, 18).
In addition to the terms of the Settlement Agreement, the Claim Form, which
was incorporated into the Settlement Agreement, speaks of a Claim in the singular
form and provides the following instructions to a putative Settlement Class
Member:
List all numbers at which you or your company received faxes between
July 14, 2009, and June 9, 2010. Attach a separate sheet if necessary.
The Settlement Administrator will verify that the fax number(s) you
provide appear(s) in the existing records related to the case before
approving your claim. The parties also have the right to audit this
claim form, verify your statements, and dispute any claims.
(Doc. 324-1, at 47). Similarly, the Mailed Notice states that “[i]f the Court approves
the settlement at the final approval hearing, each valid claim will be paid up to: (1)
$350.00 for the first fax; $125.00 for the second fax; $90.00 for the third fax; $25.00
for the fourth fax; and $25.00 for the fifth fax” (Doc. 324-1, at 49) (emphasis added).
The Publication Notice also states that “[e]ach Settlement Class Member who . . .
submits a Valid Claim shall be eligible to receive up to: (i) $350 for the first such
facsimile; (ii) $125 for the second such facsimile; (iii) $90 for the third such facsimile;
(iv) $25 for the fourth such facsimile; and (v) $25 for the fifth such facsimile” (Doc.
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324-1, at 53) (emphasis added). Like the Settlement Agreement, the notices clearly
state that a Settlement Class Member can recover up to $615 for five faxes, without
any mention of amount of fax numbers or that each fax number consists of a
separate claim. Thus, regardless of whether the Settlement Class Member received
six faxes to one fax number, six faxes to two fax numbers, or six faxes to six fax
numbers, they would receive $615.
Although Plaintiffs appear to conflate the term “Settlement Class Members”
with “fax numbers,” the Settlement Agreement unambiguously contemplates
limiting a Settlement Class Member’s recovery to $615 for five faxes. Not only is
this the only interpretation based on the plain language of the Settlement
Agreement, but it is also the only logical interpretation. Plaintiffs’ proposed
interpretation of the Settlement Agreement would yield unsound results. For
instance, Plaintiffs propose that the ascending scale for faxes one through five be
reset for each fax number, again treating a fax number as if it were a Settlement
Class Member and leading to unequal results for Settlement Class Members. For
example, under Plaintiffs’ interpretation, a Settlement Class Member who had two
fax numbers and received one fax at each of those fax numbers would recover $350
for each fax for a total of $700, whereas a Settlement Class Member who had one
fax number and received five faxes to that fax number would only recover $615.
This would also cause a great disparity between Settlement Class Members who are
similarly situated. For instance, a Settlement Class Member who had five fax
numbers and received one fax at each of those fax numbers would recover $350 for

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each fax for a total of $1,750, whereas a Settlement Class Member who had one fax
number and received five faxes to that fax number would only recover $615. Given
the resulting windfall for Settlement Class Members with multiple fax numbers,
there would be an inequitable result.
Based on the foregoing, Plaintiffs’ interpretation is not in line with the plain
language of the contract and would lead to inequitable results. Accordingly, the
Court finds that the Settlement Agreement limits a Settlement Class Member to
recover up to $615 for five faxes regardless of the number of fax numbers the
Settlement Class Member claims. Moreover, the Court denies Plaintiffs’ request for
further notice to opt-out Settlement Class Members given that the Settlement
Agreement, Claim Form, and notices are unambiguous about the potential
recovery.
B. Additional Inquiries Regarding Claims
The Settlement Agreement also addresses the claims process and payments
to Settlement Class Members (see Doc. 324-1, at 19-21). Specifically, the Settlement
Agreement provides that Epiq will reject any claim that does not substantially
comply with the instructions on the Claim Form or the terms of the Settlement
Agreement or is postmarked later than the Claim Deadline, and that 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 (Doc. 324-1, at 20). Thus, BTL has the right to audit the Claim Forms
and shall bring to the attention of Plaintiffs any Claim Form it believes is invalid or

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fraudulent, and the parties shall meet and confer and attempt to resolve any dispute
regarding the claim (Doc. 324-1, at 20). If the parties are not able to resolve the
dispute, they are to provide Epiq with their positions regarding the disputed claim
and Epiq, if appropriate, shall seek additional information from the Settlement
Class Member and make an initial determination, subject to review by the Court
(Doc. 324-1, at 20-21). Epiq has apparently withdrawn itself from this process,
refusing, at this time, to make these determinations regarding BTL’s claims of fraud
absent direction from the Court. Thus, here we are.
Plaintiffs and Defendant have agreed that Epiq shall request additional
information from the following categories of claimants:
1. Claims containing non-matching fax numbers (i.e., any claim
containing a fax number not matching a number on the Biggerstaff
list);
2. Multi-Claimed Fax Number (i.e., any claim featuring a fax number
also listed on another claim form);
3. Missing Signature;
4. Potential Government Entity; and
5. Claims submitted by entities not registered until after the class period
(i.e., July 2009 to June 2010).
(Doc. 451, at 2). The Court agrees that Epiq shall request additional information
from these categories of claimants and has already directed Epiq to partake in this
inquiry (see Doc. 470).
BTL raises five additional categories of claimants it believes should also
receive requests for additional information from Epiq:
1.
2.
3.
4.

Claims submitted by claimants identified by TransUnion;
Claims submitted by claimants identified by LexisNexis;
Claims submitted by claimants not identified on either reverse lookup;
Claims submitted by claimants providing an address outside the State of
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Florida; and
5. Claims submitted by claimants for which the reverse lookup process
identified multiple matches.
(Doc. 454, at 11). BTL concedes that the first two categories are the largest groups
and, in some sense, the most important, as a decision to send requests for additional
information to the first two categories would largely obviate the need to make a
decision with respect to the other three categories (Doc. 454, at 11). In response,
Plaintiffs seek an order rejecting BTL’s proposed requests for additional
information. For the reasons stated at the hearing, at this time the Court does not
see a need to seek additional information from these group. This does not prohibit
BTL from challenging any claims directly to Epiq or raise those issues with the
Court at a later time. The Court agrees with BTL that additional information should
be requested from fax service provides and notes that it has already directed Epiq to
confer with the parties to determine an appropriate process to identify claimants
reasonably believed to be fax service providers and request additional information
from such suspected fax service providers.
III.

Conclusion
For the foregoing reasons, it is hereby
ORDERED:
1.

Plaintiffs’ Motion Regarding the Claims Process (Doc. 451) is

GRANTED IN PART AND DENIED IN PART as follows:
a.

Epiq, as agreed upon by the parties, shall request additional

information from the following categories of claimants: 1. Claimants that submitted

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a Claim Form containing non-matching fax numbers (i.e., any claim containing a
fax number not matching a number on the Biggerstaff list); 2. Claimants that
submitted a Claim Form containing a fax number also listed on another Claim
Form; 3. Claimants that submitted a Claim Form missing a signature; 4. Claimants
that are potential government entities; and 5. Business Claimants that were
registered after the class period (July 2009 to July 2010).
b.
2.

Denied in all other respects.

Defendant’s Motion to Compel Compliance with Section VIII of the

Settlement Agreement (Doc. 454, 458), is GRANTED IN PART AND DENIED
IN PART as follows:
a.

Epiq shall confer with the parties to determine an appropriate

process to identify claimants reasonably believed to be fax service providers and
request additional information from such suspected fax service providers.
b.

Denied in all other respects.

DONE AND ORDERED in Tampa, Florida, on this 26th day of July, 2023.

cc:

Counsel of Record

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