CITY SELECT AUTO SALES, INC. v. DAVID RANDALL ASSOCIATES, INC. et al

Filing 105

MEMORANDUM OPINION. Signed by Chief Judge Jerome B. Simandle on 2/3/2014. (dmr)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

CITY SELECT AUTO SALES, INC.,
HONORABLE JEROME B. SIMANDLE
Plaintiff,
v.

Civil Action
No. 11-2658 (JBS/KMW)

DAVID RANDALL ASSOCIATES,
INC., et al.,
MEMORANDUM OPINION
Defendants.

SIMANDLE, Chief Judge:
Plaintiff brought this action under the Telephone Consumer
Protection Act (“TCPA”), 47 U.S.C. § 227, on behalf of persons
who received unsolicited fax advertisements from Defendants in
the spring of 2006. The Court issued an Opinion and Order
[Docket Items 93 & 94] certifying the class under Fed. R. Civ.
P. 23(b)(3). This matter comes before the Court on Plaintiff’s
motion for an order approving the proposed class notice. [Docket
Item 98.] The Court finds as follows:
1.

Plaintiff has identified 29,113 unique fax numbers

that received the subject unsolicited faxed advertisements from
David Randall. Plaintiff’s expert witness then extrapolated
names and addresses for each fax number. Plaintiff proposes
sending class notice via fax to each unique fax number. If
Plaintiff’s efforts to send the notice are unsuccessful after

three faxing attempts, then Plaintiff will send notice by U.S.
mail within seven days thereafter. Plaintiff also proposes
allowing class members 45 days to object or to opt out of the
class by mailing an opt out request to class counsel and to the
court. Plaintiff’s motion cites other TCPA cases in which courts
have approved class notice by fax. Plaintiff argues that fax
notice is the best and most efficient method for sending notice
in this particular case because faxing will result in a fax
transmission report identifying which fax numbers received the
notice and which did not. In addition, Plaintiff notes that some
class members may have moved since the advertising campaign in
2006 but that such members likely retained the same fax number.
Finally, Plaintiff notes that, while the TCPA prohibits
unsolicited fax advertisements, it does not prohibit faxes
containing legal notices.
2.

Defendants filed opposition [Docket Item 100] arguing

that the notice should be sent to class members via mail.
Defendants argue that sending class notice via fax would
compound the injury, i.e., receipt of unsolicited faxes, to
class members. Defendants do not dispute the contents of
Plaintiff’s proposed notice.1

1

In their opposition, Defendants also raise complaints about
Plaintiff’s production class members’ names and addresses. This
complaint is moot because Plaintiff attached this information to
its reply. [Docket Item 103-2.]
2

3.

The content of the notice complies with the

requirements of Fed. R. Civ. P. 23(c)(2)(B). The only disputed
issue is method of notice. “For any class 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.” Fed. R. Civ. P. 23(c)(2)(B).
4.

Notice shall be disseminated through Plaintiff’s

proposed method, i.e., via fax or, after three unsuccessful fax
transmissions, U.S. mail. This method is the most practicable.
The class members received unsolicited faxes in the spring of
2006. Since that time, some members may have moved and retained
their fax numbers. Moreover, the original list of class members
was a list of fax numbers, not a list of names and addresses.
The fax method will generate a log of successful transmissions.
Finally, fax transmission is cheaper than U.S. mail, thus
ensuring lower administrative costs.
5.

The Court is mindful of the irony of using faxes to

disseminate class notice in a lawsuit regarding unsolicited fax
advertisements. Some TCPA cases have required notice via U.S.
mail. See, e.g., Kavu, Inc. v. Omnipak Corp., Civ. 06-109, 2007
WL 777581, at *1 (W.D. Wash. Mar. 13, 2007) (“class members are
more likely to receive and give appropriate consideration to
notices sent via first class mail . . . . mailing the notices,
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rather than transmitting them via facsimile, is the best notice
practicable”); G.M. Sign, Inc. v. Franklin Bank, S.S.B., Civ.
06-949, 2008 WL 3889950, at *6 (N.D. Ill. Aug. 20, 2008) (“The
purpose behind the TCPA is to reduce the amount of unsolicited
faxes that are sent. Though legal documents are not
advertisements and thus not strictly within the scope of the
TCPA, even the Federal Rules of Civil Procedure do not permit
fax service of legal documents without prior consent of the
party receiving them. Fed. R. Civ. P. 5(b)(2)(E).”).
6.

In this case, however, the Court finds that notice via

fax is appropriate. Plaintiff noted several TCPA cases in which
courts approved dissemination of notice via fax. See, e.g.,
Opinion and Order Granting Plaintiff’s Motion for Class
Certification, Exclusively Cats Veterinary Hosp. v. Anesthetic
Vaporizer Services, Inc., Civ. 10-10620, ECF No. 14 at 13 ¶ 6
(E.D. Mich. Dec. 27, 2010) (“[t]he Court has reviewed the
proposed notice submitted by Plaintiff’s counsel and . . .
approves it for dissemination by fax only to class members”);
Preliminary Approval Order, Ballard Nursing Ctr., Inc. v. S.
Life Sys., Inc., Civ. 09-1000, ECF No. 29 at 2 ¶ 5 (N.D. Ill.
July 1, 2009) (“[t]he Court approved the proposed form of notice
to the Class by facsimile . . . . If the facsimile transmission
to any particular Class member is not successful and if a
mailing address is available for that Class Member, Class
4

Counsel will mail notice to that Class member at the last known
address available”).
7.

Some of the TCPA cases that Plaintiff cited involve

fax notice of settlement agreements under Fed. R. Civ. P.
23(e)(1), which requires courts to “direct notice in a
reasonable manner to all class members.” The standard in those
cases is thus somewhat different from the standard under Rule
23(c)(2)(B), which requires “the best notice that is practicable
under the circumstances.” Those TCPA cases still provide
persuasive authority for fax notice particularly because the
settlement notice in those cases was the only notice sent to the
class. See, e.g., Order Preliminarily Approving the Class Action
Settlement and Approving the Class Notice, Green v. Serv. Master
On Location Servs. Corp., Civ. 07-4705, ECF No. 98 at 2 ¶ 5
(N.D. Ill. Aug. 27, 2009) (“[t]he Settlement Agreement proposes
that notice will be faxed to each member of the Settlement Class
. . . . The Court finds that this notice plan satisfies the
requirements of due process and Fed. R. Civ. P. 23(e)”);
Preliminary Approval Order, Ballard Nursing Ctr. v. Accubuilt,
Inc., Civ. 08-260, ECF No. 48 at 2 ¶ 5 (N.D. Ill. Aug. 25, 2009)
(“[t]he Court approves the proposed form of notice to the
Settlement Class by facsimile . . . . If the facsimile
transmission to any particular Settlement Class Member is not

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successful and if a mailing address is available for that
Settlement Class Member, Class Counsel will mail notice . . .”);
Order Certifying the Settlement Class, Preliminarily Approving
the Class Action Settlement, and Approving the Class Notice, CE
Design Ltd. v. Exterior Sys., Inc., Civ. 07-66, ECF No. 36 at 2
¶ 5 (N.D. Ill. Oct. 16, 2007) (“[t]he Settlement Agreement
proposes that notice will be faxed to each member of the
Settlement Class . . . . [t]he Court finds that this notice plan
satisfies the requirements of due process and Fed. R. Civ. P.
23(e)”).
8.

Moreover, the Court respectfully disagrees with the

Franklin Bank court’s analysis regarding Fed. R. Civ. P. 5(b).
Rule 5 mandates the form of service “[u]nless these rules
provide otherwise.” Fed. R. Civ. P. 5(a)(1). Rule 23(c)(2)(B)
requires “the best notice that is practicable under the
circumstances.” Rule 23(c)(2)(B) supersedes Rule 5 in this
instance because it specifically applies to class notice. The
Court is vested with discretion to determine and require the
best practicable notice. Fax notice is the most practicable in
these circumstances, which include the passage of time since the
fax advertising campaign, the relative cost of faxing versus
mail, the fact that the original list was a list of fax numbers,
the speed of communication, and the easy verifiability that the

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fax transmission was successful, all when compared with the
mailing of such notices to more than 29,000 distinct recipients.
9.

The Court has also made several corrections2 to the

proposed form of notice, and the amended form of notice is
attached hereto. The accompanying Order will be entered.

February 3, 2014
Date

s/ Jerome B. Simandle
JEROME B. SIMANDLE
Chief U.S. District Judge

2

Corrections to the proposed form of notice include: (a)
changing “denies” to “deny” in ¶ B, line 7; (b) inserting the
April 16, 2014 deadline date in ¶¶ D.1 & D.2 and in the Request
for Exclusion form; (c) substituting the Clerk of Court’s Camden
address for the Newark address in ¶¶ D.2 & E and the Request for
Exclusion Form; (d) changing the word “are” to “may be” in ¶ A,
line 1; and (e) adding the following sentence, “It appears that
one or more unsolicited advertisements, as described above, were
sent to the fax machine having the same fax number as the one to
which this notice is being sent,” to ¶ A.
7