Mohamed v. American Motor Company, LLC et al

Filing 305

ORDER GRANTING IN PART PLAINTIFF'S MOTION FOR APPROVAL OF CLASS NOTICE PLANgranting in part and denying in part 294 Motion for Approval of Class Notice Plan. Signed by Judge Marcia G. Cooke on 1/12/2018. (tm)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 15-cv-23352-Civ-COOKE/TORRES
RAY MOHAMED, individually and
on behalf of others similarly situated,
Plaintiff,
vs.
OFF LEASE ONLY, INC., a Florida
Corporation,
Defendants.
______________________/
ORDER GRANTING IN PART PLAINTIFF’S MOTION FOR
APPROVAL OF CLASS NOTICE PLAN
THIS MATTER is before me on Plaintiff’s Motion for Approval of Class Notice
Plan (“Motion”) (ECF No. 294). Defendant filed its Response in Opposition (ECF No.
296), to which Plaintiff filed a reply (ECF No. 300). The matter is now ripe for review.
After careful consideration, and for the reasons discussed below, Plaintiff’s Motion is
granted in part and denied in part.
I. BACKGROUND
Plaintiff, on behalf of the class, brings this case under the Telephone Consumer
Protection Act (“TCPA”), 47 U.S.C. § 227 et seq., alleging Defendant, through an agent,
sent text messages in violation of the TCPA. On July 12, 2017, I entered an Order Partially
Adopting Report and Recommendation (ECF No. 290), which certified the following
class:
All subscribers within the United States (i) who received a text
message (ii) on his or her cellular telephone (iii) from InstantCarOffer.com,
on behalf of Off Lease Only, Inc., (iv) through the use of the Twilio platform
(v) after placing an advertisement on craigslist.org in connection with the
sale of a vehicle (vi) for a period of four (4) years prior to the filing of the
initial Complaint – September 4, 2011 – to the date of class certification.
Plaintiff filed the instant motion for approval of his Notice Plan, which includes:
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(1) email notice to those individuals for whom Craigslist is able to produce a
valid email address and individual postcard notice to those without a valid
email address who can be identified through a “reverse lookup” performed
by KCC1; (2) a dedicated website that will include a long form notice, as
well as case and contact information; and (3) a telephone line featuring an
interactive voice response system to handle class member inquiries.
Motion, p. 2. Plaintiff has filed, conventionally and under seal, a list of phone numbers
which American Motor Company, LLC (“AMC”)2 has said were sent text messages from
InstantCarOffer.com using the Twilio platform. These are the phone numbers Craigslist
will cross check to see if they are associated with a Craigslist advertisement in connection
with the sale of a vehicle. Plaintiff requests thirty (30) days to certify to the Court that
Notice has been sent and for a deadline of sixty (60) days from the date Notice is sent for
class members to request exclusion.
II. LEGAL STANDARD
Federal Rule of Civil Procedure 23(c)(2)(B) governs the requirements of notice to
members of a class action lawsuit. It mandates that “[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.” Id. The notice must be clear and concise and, in language easily
understood, contain the following:
(i) the nature of the action; (ii) the definition of the class certified; (iii) the
class claims, issues, or defenses; (iv) that a class member may enter an
appearance through an attorney if the member so desires; (v) that the court
will exclude from the class any member who requests exclusion; (vi) the
time and manner for requesting exclusion; (vii) the binding effect of a class
judgment on members under Rule 23(c)(3).
Id. “The United States Supreme Court has declared that subdivision (c)(2) expresses an
‘unambiguous requirement’ that ‘individual notice must be provided to those class
members who are identifiable through reasonable effort.’” In re Nissan Motor Corp. Antitrust

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“KCC” is Kurtzman Carson Consultants, LLC, is “an experienced and reputable class
action administrator,” with whom Plaintiff has consulted in developing his notice plan. See
Motion, p. 2.
2
AMC was initially named as a Defendant in this case, but has since been dismissed. See
ECF Nos. 102, 152.
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Litig., 552 F.2d 1088, 1097 (5th Cir. 1977)3 (quoting Eisen v. Carlisle & Jacquelin, 417 U.S.
156, 175-76 (1974)). A district court has broad discretion “to enable efficacious
administration of the course of the proceedings before it,” so long as the due process rights
of absentee class members are protected. Id.
III. DISCUSSION
Defendant does not necessarily object to the method of notice, but rather the
substance of the notice. Defendant maintains that Plaintiff has not undertaken “reasonable
efforts” to identify actual class members. Specifically, Defendant alleges Plaintiff’s plan is
over-inclusive and misleading. Defendant would prefer that class members be required
affirmatively to opt-in to the class prior to trial or a decision on the merits of the case.
Plaintiff’s plan is not over-inclusive; any person receiving Notice as proposed in this
plan is a potential class member. See Macarz v. Transworld Sys., Inc., 201 F.R.D. 54, 61 (D.
Conn. 2001) (allowing slightly over-inclusive notice where the data included the universe
of class members). In addition, as Plaintiff points out, there is no evidentiary basis in
Defendant’s claim that the text messages AMC says were sent by Twilio were not
received. I find the Plaintiff’s proposed method of determining potential class members to
be a fair starting point.4 However, while Plaintiff notes that actual receipt of a text is not
required to show a violation of the TCPA, receipt of a text is a prerequisite to being a class
member and is a requirement to have standing. See Order on Standing, ECF No. 212, p. 2–
5. Confirming receipt of a qualifying text through an affidavit or otherwise5 is a valid
means of verifying class membership; however, this need not be done at the notice stage.
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The Eleventh Circuit has adopted, as binding precedent, all decisions of the former Fifth
Circuit handed down prior to close of business on September 30, 1981. Bonner v. City of
Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc).
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Defendant’s additional step of verifying whether a potential class member was the
subscriber of the phone number at the time the text message was received is unnecessary in
light of Plaintiff’s explanation of the “reverse lookup” procedure, which limits its results to
a given timeframe. See Reply, p. 10.
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For example, a “check box” on the class website stating the potential class member is
declaring under penalty of perjury they received a qualifying text message would be a
proper substitute for a written and notarized affidavit. Defendant’s request that potential
class members submit some type of documentary evidence to confirm receipt of a text
message, which was likely sent several years ago, is unnecessarily burdensome to class
members where Defendant has provided nothing but speculation that such texts were not
received.
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There exist no “special circumstances” that warrant having class members self-identify at
this stage; Defendant will have an adequate sense of its potential liability once Craigslist
cross references AMC’s list of phone numbers with its records.
As for Defendant’s claim that Plaintiff’s proposed notice is misleading, I agree in
part. Defendant objects to Plaintiff’s “Email Notice” (Ex. A), because the Email Notice
states, “You have received this email because records show that you are a member of the
Certified Class.” (emphasis added). It is possible that individuals receiving notice may not
be class members for various reasons, including that they did not receive a text message. It
is therefore misleading to state they are definitely a class member. Defendant also contests
Plaintiff’s “Long Form Notice” (Ex. C), which states the recipient does not have to do
anything to remain a member of the class. Ex. C, p. 2. I find nothing objectionable in this
language, given that I am not requiring class members to self-identify at this stage.
However, Defendant notes that the Long Form Notice also provides that “you will share
in any benefits obtained in the case.” Id., p. 3. This language does not take into account
Plaintiff’s different legal theories and Defendant’s affirmative defenses, which may mean
that some class members recover where others do not. See Order Partially Adopting Report
and Recommendation, ECF No. 290, p. 2. Simply saying “may share” rather than “will
share” should be sufficient to accurately describe the possibility of recovery.
As for Defendant’s claim that the class notice does not adequately describe
Defendant’s defenses, the following should clearly explain the defenses without adding too
much confusion:
Defendant denies liability on all of Plaintiff’s claims. Specifically, Defendant
alleges that American Motor Company, LLC, was not acting on
Defendant’s behalf and that the text recipients consented to receive the text
messages.
With the limited modifications discussed above, I find Plaintiff’s Notice satisfies the
requirements of Rule 23(c)(2)(b) and constitutes the best notice practicable under the
circumstances.
IV. CONCLUSION
For the reasons stated above, Plaintiff’s Motion for Approval of Class Notice Plan
(ECF No. 20) is GRANTED in part and DENIED in part. Plaintiff shall have twenty-one
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(21) days from the date of this Order to certify that Notice, as modified above, has been
sent to the class. Potential class members must request exclusion within sixty (60) days of
the date Notice is sent.
DONE and ORDERED in chambers in Miami, Florida this 12th day of January
2018.

Copies provided to:
Edwin G. Torres, U.S. Magistrate Judge
Counsel of Record

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