Janson et al v. LegalZoom.com, Inc.
Filing
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SUGGESTIONS in support re 63 MOTION for order Order for Notice and Publication filed by Matthew A. Clement on behalf of Plaintiffs Gerald T. Ardrey, C & J Remodeling LLC, Chad M Ferrell, Todd Janson. (Attachments: # 1 Exhibit, # 2 Exhibit)(Related document(s) 63 ) (Clement, Matthew)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MISSOURI
CENTRAL DIVISION
TODD JANSON, et al.,
Plaintiffs,
v.
LEGALZOOM.COM, INC.
Defendant.
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Case No. 10-04018-CV-C-NKL
SUGGESTIONS IN SUPPORT OF PLAINTIFFS’
MOTION FOR APPROVAL OF CLASS ACTION NOTICE AND
TO DIRECT DEFENDANT TO PROVIDE CLASS CONTACT INFORMATION
Come now, plaintiffs Todd Janson, Gerald Ardrey, Chad Ferrell, and C & J Remodeling,
LLC (hereinafter “Plaintiffs”), by and through counsel, and for their Suggestions in Support of
their Motion for Approval of Class Action Notice and to Direct Defendant to Provide Class
Contact Information, state as follows:
I. Introduction
Plaintiffs filed this class action against defendant Legalzoom.com, Inc. (hereinafter
“Legalzoom”) challenging Legalzoom’s on line legal document preparation service. Plaintiffs
allege that Legalzoom’s service constitutes the unauthorized practice of law in Missouri in
violation of § 484.020, RSMo, violates the Missouri Merchandising Practices Act, § 407.010, et.
seq., RSMo and make a claim for Money Had and Received for the fees the class paid to
Legalzoom over the relevant time period. Plaintiffs allege that the class consists of individuals
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who used Legalzoom’s various software and computer programs to answer questions which, in
turn, allowed Legalzoom to prepare the legal document(s) requested by the class members. Once
a legal document was prepared, Legalzoom sent the document to the class member by electronic
mail as well as through the U.S. Mail. 1
On December 14, 2010, this Court granted Plaintiffs’ Motion for Class Certification and
certified a class defined as “All persons and other entities resident within the State of Missouri
who were charged and paid fees to LegalZoom for the preparation of legal documents from
December 17, 2004 to the present.” The class was certified pursuant to Federal Rule of Civil
Procedure 23(a) and 23(b)(3). See, Court’s Order dated December 14, 2010 (Doc. # 61).
Pursuant to Federal Rule of Civil Procedure 23(c)(2)(B), in cases 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.” Plaintiffs respectfully request the Court to approve the notice attached hereto
as Exhibit 1 be directed to the class members pursuant to the notice plan set forth herein, and to
direct Legalzoom to provide contact information for all class members in a useable format.
II. Argument
A. Plaintiffs’ Proposed Notice to Class
Plaintiffs’ Proposed Notice, attached as Exhibit 1, complies with Federal Rule of Civil
Procedure 23(c)(2)(B). This Rule requires, in cases such as this, that the Notice to the class state
in “plain, easily understood language”:
(i)
The nature of the action;
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Class members may also have received the documents prepared by Legalzoom via overnight mail if the class
member choose to pay more the rapid delivery of the legal document.
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(ii)
(iii)
(iv)
(v)
(vi)
(vii)
The definition of the class certified;
The class claims, issues, or defenses;
That a class member may enter an appearance an attorney if the
class member so desires;
That the court will exclude from the class any member who
requests exclusion;
The time and manner for requesting exclusion; and
The binding effect of a class judgment on members under Rule 23
(c)(3).
The text of the proposed notice contains all of the required information in plain terms and
describes how class members can obtain all of the pleadings filed in the case, along with the
Orders entered by this Court. Plaintiffs further request that the Court permit them to create a
web site – http://www.lzoomclassaction.com-- where class members can easily access the
primary pleadings and Orders from this case and counsel can provide answers to some frequently
asked questions by class members.
Plaintiffs propose that if the Court approves this notice and distribution plan, the deadline
by which the notice must be distributed should be forty-five (45) days from the date of the
Court’s Order directing Notice to the class. Plaintiffs further propose that the exclusion date (the
date by which the class members must opt out of the case) be sixty (60) days from date by which
the Notice must be distributed. This will provide all class members, including those who may
not be reached by the initial notice and require a follow up mailing to receive the notice, have a
sufficient opportunity to exclude themselves from the class if they so desire.
B. Proposed Distribution of Class Notice to the Class
Class members in this case have demonstrated they are users of the Internet and most, if
not all, communicated with Legalzoom via e-mail. As set forth above and in prior pleadings, it
appears they received the documents prepared through Legalzoom via both e-mail and U.S. Mail.
Because of the nature of the class members’ communication with Legalzoom, Plaintiffs propose
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the Notice attached hereto as Exhibit 1 be distributed to the class via e-mail in the first instance
and then by U.S. Mail to the mailing addresses Legalzoom has in its database if the e-mail either
fails or is otherwise unavailable for any particular class members.
This method for notifying the class meets the requirements of Rule 23(c)(2)(B) – i.e., the
“best notice that is practicable under the circumstances, including individual notice to all
members who can be identified through reasonable effort.” Fed. R. Civ. P. 23(c)(2)(B). Subject
to the requirement that notice be the “best practicable,” the Court has “complete discretion as to
how the notice should be given.” 7B CHARLES A. WRIGHT ET AL., FEDERAL PRACTICE AND
PROCEDURE § 1797.6 at 200 (3d ed. 2005). Further, as the District Court of New Jersey noted,
alternative means of contacting individual class members such as “utilizing the cost and
efficiency savings that come from features such as electronic mail or text messaging” may be
part of a notice plan that meets the Rule 23(c)(2)(B) standards. Larson v. Sprint Nextel Corp.,
2009 WL 1228443, *15 (D. N.J. 2009)(citing William B. Rubinstein, Alba Conte and Herbert B.
Newberg, 3 Newberg on Class Actions § 8:24 (4th Ed. 2002) “The Court is limited in
determining alternative measures only by due process considerations, the limits of Rule
23(c)(2)(B) . . . and its own ingenuity.”).
In this case, communication to the class by e-mail and then U.S. Mail in the event the
email is not valid, provides the best practicable notice to these internet savvy class members.
The class members have shown they are capable of communicating about important legal issues
via e-mail. Courts that have considered notice to internet savvy class members frequently
determine that electronic mail serves as the best practicable notice. See, e.g., Browning v.
Yahoo!, Inc., 2007 WL 4105971, at *4 (N.D.Cal. Nov. 16, 2007) (holding that e mail notice was
“particularly suitable” in a case where class members’ claims arose from their visits to the
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defendant’s internet website) and Lundell v. Dell, Inc., 2006 WL 3507938, at *4 (N.D. Cal. Dec.
5, 2006) (notice in nationwide class action against Dell accomplished in part through “electronic
messaging”).
E-mail notice provides the “best notice that is practicable” to this class. Where the
electronic mail option does not exist, traditional mail will provide the necessary individualized
notice. Together, these methods more than satisfy the due process requirements of Rule
23(c)(2)(B).
C. Class Member Information from Legalzoom
In order to implement the notice plan, Plaintiffs request that the Court direct Legalzoom
to provide Class Counsel with the e-mail addresses and physical addresses of all potential class
members in a useable format. Because such information should be readily available and has
been formally requested through a Request for Production of Documents and Things, Plaintiffs
suggest that the deadline be fifteen days (15) from the filing of this motion or such other time as
the Court deems appropriate under the circumstances.2 This information is obviously necessary
to provide the required notice to the class members and is only within the control of Legalzoom.
D. Appointment of Epiq Legal Noticing as Notice Administrator.
Plaintiffs further propose that Epiq Legal Noticing, a Division of Epiq Systems, (“Epiq”)
be appointed by the Court to serve as the Notice Administrator. Epiq has ample experience in
carrying out notice programs in class cases. See, Declaration of Cameron R. Azari, attached
hereto as Exhibit 2. No class representative or class counsel has any financial interest in Epiq
nor does any class representative or counsel for any party serve as an officer, director, agent, or
employee of Epiq.
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Plaintiffs served a Request for Production of Documents seeking this information on January 7, 2011.
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III. Conclusion
For the reasons set forth herein, Plaintiffs request that the Court approve the Notice
attached hereto as Exhibit 1 be provided to the class members via e-mail and regular mail to any
class member for whom the e-mail “bounces back” or otherwise does not appear to be valid.
Further, Plaintiffs request that Legalzoom be directed to provide the e-mail addresses and
physical mailing addresses to Class Counsel in a useable format in a timely manner so notice
may be accomplished. Finally, Plaintiffs respectfully request that Epiq Legal Noticing be
appointed as Notice Administrator to assist class counsel in providing he notice directed by the
Court.
Respectfully submitted;
___/s/Matthew A. Clement_________________
Timothy Van Ronzelen, #44382
Matthew A. Clement, #43833
Kari A. Schulte, #57739
COOK, VETTER, DOERHOFF & LANDWEHR
231 Madison
Jefferson City, Missouri 65101
Telephone: 573-635-7977
Facsimile: 573-635-7414
tvanronzelen@cvdl.net
mclement@cvdl.net
kschulte@cvdl.net
and
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Edward D. Robertson, Jr., # 27183
Mary Doerhoff Winter, # 38328
BARTIMUS, FRICKLETON, ROBERTSON
& GORNY
715 Swifts Highway
Jefferson City, MO 65109
Telephone: 573-659-4454
Facsimile: 573 659-4460
chiprob@earthlink.net
marywinter@earthlink.net
David T. Butsch, # 37539
James J. Simeri, #52506
BUTSCH SIMERI FIELDS LLC
231 S. Bemiston Ave., Ste. 260
Clayton, MO 63105
Telephone: 314-863-5700
Facsimile: 314-863-5711
butsch@bsflawfirm.com
simeri@bsflawfirm.com
Randall O. Barnes, #39884
RANDALL O. BARNES & ASSOCIATES
219 East Dunklin Street, Suite A
Jefferson City, Missouri 65101
Telephone: 573-634-8884
Facsimile: 573-635-6291
rbarnesjclaw@aol.com
Steven E. Dyer, #45397
LAW OFFICES OF STEVEN DYER
10850 Sunset Office Drive, Ste. 300
St. Louis, MO 63127
Telephone: 314-898-6715
jdcpamba@gmail.com
ATTORNEYS FOR PLAINTIFFS
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CERTIFICATE OF SERVICE
I certify that on January 31, 2011, I served this paper upon the following via this Court’s
ECF system:
Party
Counsel
Robert M. Thompson
James T. Wicks
BRYAN CAVE LLP
One Kansas City Place
1200 Main Street, Ste. 3500
Kansas City, MO 64105
816.374.3200, 816.374.3300 (fax)
Defendant
LegalZoom.com, Inc.
John Michael Clear
Michael Biggers
James Wyrsch
BRYAN CAVE LLP
One Metropolitan Square – Ste. 3600
211 N. Broadway
St. Louis, MO 63102
314.250.2000, 314.259.2020 (fax)
___/s/Matthew A. Clement__________
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