United States District Court, S.D. Florida
RAY MOHAMED, individually and on behalf of others similarly situated, Plaintiff,
OFF LEASE ONLY, INC., a Florida Corporation, Defendants.
ORDER GRANTING IN PART PLAINTIFF'S MOTION FOR
APPROVAL OF CLASS NOTICE PLAN
G. TORRES, U.S. MAGISTRATE JUDGE.
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.
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
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.
filed the instant motion for approval of his Notice Plan,
(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 KCC; (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”) 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.
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
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 Litig., 552 F.2d
1088, 1097 (5th Cir. 1977) (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.
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