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Mohamed v. Off Lease Only, Inc.

United States District Court, S.D. Florida

January 12, 2018

RAY MOHAMED, individually and on behalf of others similarly situated, Plaintiff,
v.
OFF LEASE ONLY, INC., a Florida Corporation, Defendants.

          ORDER GRANTING IN PART PLAINTIFF'S MOTION FOR APPROVAL OF CLASS NOTICE PLAN

          EDWIN G. TORRES, U.S. MAGISTRATE JUDGE.

         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:

(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[1]; (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 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 ...


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