Dibb v. AllianceOne Receivables Management Inc

Filing 165

ORDER ON PLAINTIFFS' MOTION TO AMEND CASE SCHEDULE, granting 159 Motion for Extension of Time. Signed by Judge Robert J. Bryan.(JL)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

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MARGARET L. DIBB, SHAUNA
OVIST, and WENDY GONDOS,
individually and on behalf of others
similarly situated,

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ORDER ON PLAINTIFFS’ MOTION
TO AMEND CASE SCHEDULE

Plaintiffs,
v.
ALLIANCEONE RECEIVABLES
MANAGEMENT, INC.,
Defendant.

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CASE NO. 14-5835 RJB

This matter comes before the Court on the Plaintiffs’ Motion to Amend Case Schedule

19 Deadlines for Mailing Class Notice and For Class Members to Opt-Out. Dkt. 159. The Court
20 has considered the pleadings filed regarding the motion and the remaining file.
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The schedule for this class action case was amended at the parties’ request on April 11,

22 2016. Dkt. 156. The amended deadline for Plaintiffs to send notice of this case to class
23 members was April 15, 2016. Id. The amended deadline set for expiration of the opt-out period
24 was May 30, 2016. Id.
ORDER ON PLAINTIFFS’ MOTION TO AMEND
CASE SCHEDULE- 1

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Plaintiffs mailed Fed. R. Civ. P. 23 (c)(2) notices to class members on April 15, 2016.

2 Dkt. 160-1. These notices inadvertently stated the opt-out date was April 15, 2016 (the date set
3 prior to the case amendment) rather than using the amended date of May 30, 2016. Plaintiffs
4 discovered their error on April 20, 2016, and now move the Court for an amended case schedule
5 to ensure that class members have at least forty-five days in which to exercise their right to opt6 out of this lawsuit. Dkt. 159. Plaintiffs move for an extension of seven days after the date of the
7 order to send a corrected notice and for an extension of 45 days after the date the notice is sent
8 for expiration of the opt-out period. Id. Plaintiffs filed a proposed corrected notice. Dkt. 160-1,
9 at 2-3.
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Defendant responds and argues that the Plaintiffs’ proposed revision should not be

11 utilized “because it fails to alert class members to the magnitude of Plaintiffs’ counsel’s errors.”
12 Dkt. 161. Further, Defendant argues that the class website contained an incorrect opt-out date of
13 January 22, 2016 in the introduction (at least until April 20, 2016 when it was corrected, but five
14 days after the notices were sent) and the introduction included a reference to a non-party:
15 “Lawyers must prove the claims against Appstack at a trial set to December 12, 2016. If money
16 is obtained from AllianceOne, you will be notified about how to ask for a share.” Dkt. 162-1, at
17 2. Defendant contends that these errors are “highly prejudicial” because even if an amended
18 notice is sent and the website corrected these “least sophisticated debtors” are “highly unlikely”
19 to read a second notice or visit a website again. Dkt. 161, at 3. Defendant also complains that
20 Plaintiffs are not communicating information like class administration budget and website traffic
21 monitoring with it. Id. Defendant argues that either a new class administrator should be
22 appointed (it suggests an entity called Class Action Administration LLC) or that different
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ORDER ON PLAINTIFFS’ MOTION TO AMEND
CASE SCHEDULE- 2

1 corrective language should be used in the revised notice which Defendant suggests should
2 provide:
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PRIOR NOTICES THAT YOU RECEIVED REGARDING THE
ALLIANCEONE CLASS ACTION CONTAINED INCORRECT
INFORMAITON ABOUT YOUR OPT-OUT RIGHTS. ALSO, IF YOU
VISITED THE WEBSITE, WWW.ALLIANCEONECLASSACTION.COM
PRIOR TO APRIL 20, 2016, IT CONTAINED INCORRECT INFORMATION
ABOUT YOUR OPT-OUT RIGHTS. THE ERRORS ON THE WEBSITE
WERE CORRECTED ON APRIL 20, 2016. THIS INCORRECT
INFORMATION MAY HAVE BEEN MISLEADING, DESCEPTIVE, AND
CONFUSING. THE PURPOSE OF THIS NOTICE IS TO INFORM YOU OF
THESE ERRORS, TO LET YOU KNOW THAT YOU HAVE UNTIL ___ TO
OPT-OUT OF THIS CLASS ACTION, AND TO PROVIDE YOU CORRECT
INFORMATION REGARDING CLASS ADMINISTRATION.

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Dkt. 161, at 2.
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In their Reply, Plaintiffs note that Defendant does not oppose the extension of time. Dkt.
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163. Plaintiffs’ offer a modification of Defendant’s proposed language for the revised notice
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which provides:
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PRIOR NOTICE THAT YOU RECEIVED CONTAINED AN INCORRECT
DATE FOR OPTING OUT. THIS NOTICE IS TO INFORM YOU THAT YOU
HAVE UNTIL JUNE 6, 2016 TO OPT-OUT OF THIS CLASS ACTION.

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Dkt. 163, at 2. Plaintiffs also suggest language to be added to the website, which provides:
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PRIOR NOTICE THAT YOU RECEIVED CONTAINED AN INCORRECT
DATE FOR OPTING OUT. IF YOU VISITED THIS WEBSITE PRIOR TO
APRIL 20, 2016, IT CONTAINED AN INCORRECT DATE FOR OPTING
OUT. AS A RESULT OF THESE ERRORS, THE DEADLINE FOR OPTING
OUT HAS BEEN EXTENDED. YOU HAVE UNTIL JUNE 6, 2016 TO OPTOUT OF THIS CLASS ACTION.

20 Id. They note that the June 6, 2016 date may change based on the date the revised notices
21 actually get mailed. Dkt. 163. Plaintiffs argue that a claims administrator is unnecessary to
22 complete the notice process or monitor the website. Id.
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ORDER ON PLAINTIFFS’ MOTION TO AMEND
CASE SCHEDULE- 3

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DISCUSSION

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For classes certified pursuant to Fed. R. Civ. P. 23 (b)(3), as this one was, Rule 23

3 (c)(2)(b) provides that “the court must direct to class members the best notice that is practicable
4 under the circumstances, including individual notice to all members who can be identified
5 through reasonable effort.” In part, the notice must include “the time and manner for requesting
6 exclusion.” Rule 23 (c)(2)(b)(vi).
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Plaintiffs’ motion for an extension of time to send the class notices and to reset the

8 expiration of the opt-out period (Dkt. 159) should be granted. Rule 23 (c)(2)(b) requires the
9 class members get notice of this case and be informed of the proper opt-out deadlines.
10 Defendant does not meaningfully object to the extension of time. Plaintiffs should send the
11 revised notices within seven days of the date of this order with an opt-out deadline set no less
12 than forty-five days from the date of mailing. The revised notices should include the following
13 language:
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PRIOR NOTICE THAT YOU RECEIVED CONTAINED AN INCORRECT
DATE FOR OPTING OUT. THIS NOTICE IS TO INFORM YOU THAT
YOU HAVE UNTIL [Fill in date no less than forty-five days from the date
the notices are mailed] TO OPT-OUT OF THIS CLASS ACTION.

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The website should also include the following:
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PRIOR NOTICE THAT YOU RECEIVED CONTAINED AN INCORRECT
DATE FOR OPTING OUT. IF YOU VISITED THIS WEBSITE PRIOR TO
APRIL 20, 2016, IT CONTAINED AN INCORRECT DATE FOR OPTING
OUT. AS A RESULT OF THESE ERRORS, THE DEADLINE FOR
OPTING OUT HAS BEEN EXTENDED. YOU HAVE UNTIL [Fill in date
no less than forty-five days from the date the notices are mailed] TO OPTOUT OF THIS CLASS ACTION.

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Plaintiffs should make the website changes as soon as possible.
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Defendant’s motion for appointment of a claims administrator should be denied without
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prejudice. The current procedural posture of the case does not yet warrant it. Defendant makes
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ORDER ON PLAINTIFFS’ MOTION TO AMEND
CASE SCHEDULE- 4

1 no showing that Plaintiffs must communicating information like class administration budget and
2 website traffic monitoring with it. Plaintiffs have agreed to provide information regarding
3 notices that are not deliverable and opt-outs at the end of the period. Dkt. 163, at 4. At this
4 stage, appointment of a claims administrator is not warranted.
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ORDER
Therefore, it is hereby ORDERED that:


Plaintiffs’ Motion to Amend Case Schedule Deadlines for Mailing Class Notice
and For Class Members to Opt-Out (Dkt. 159) IS GRANTED:
o The case schedule is AMENDED as follows:


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Deadline for mailing of class notice IS RESET to within seven
days of the date of this order; and



Expiration of class opt-out period IS RESET to no less than forty-

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five days from the date the notices are mailed;

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o Plaintiffs’ revised notice shall contain the following information:

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PRIOR NOTICE THAT YOU RECEIVED CONTAINED AN
INCORRECT DATE FOR OPTING OUT. THIS NOTICE IS TO
INFORM YOU THAT YOU HAVE UNTIL [Fill in date no less than
forty-five days from the date the notices are mailed] TO OPT-OUT
OF THIS CLASS ACTION.
o Plaintiffs shall add the following information to the website:
PRIOR NOTICE THAT YOU RECEIVED CONTAINED AN
INCORRECT DATE FOR OPTING OUT. IF YOU VISITED THIS
WEBSITE PRIOR TO APRIL 20, 2016, IT CONTAINED AN
INCORRECT DATE FOR OPTING OUT. AS A RESULT OF
THESE ERRORS, THE DEADLINE FOR OPTING OUT HAS
BEEN EXTENDED. YOU HAVE UNTIL [Fill in date no less than
forty-five days from the date the notices are mailed] TO OPT-OUT
OF THIS CLASS ACTION.

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ORDER ON PLAINTIFFS’ MOTION TO AMEND
CASE SCHEDULE- 5

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

Defendant’s motion for appointment of a third party administrator (Dkt. 161) IS
DENIED WITHOUT PREJUDICE.

The Clerk is directed to send uncertified copies of this Order to all counsel of record and

4 to any party appearing pro se at said party’s last known address.
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Dated this 2nd day of May, 2016.

A
ROBERT J. BRYAN
United States District Judge

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ORDER ON PLAINTIFFS’ MOTION TO AMEND
CASE SCHEDULE- 6