Lavigne v. First Cmty. Banc Shares, Inc.

JANINE LAVIGNE, Plaintiff, v. FIRST COMMUNITY BANC SHARES, INC.and FIRST NATIONAL BANK TEXAS, Defendants.

No. 1:15-cv-00934-WJ/LF

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO

March 7, 2019

MEMORANDUM OPINION AND ORDER GRANTING PLAINTIFF'S MOTION FOR APPROVAL OF NOTICE PLAN

THIS MATTER comes before the Court upon Plaintiff's Motion for Approval of Notice Plan (Doc. 138). Having reviewed the parties' briefs and the applicable law, the Court finds that Plaintiff's Motion for Approval of Notice Plan is well-taken, and therefore, is GRANTED.

BACKGROUND

This is a certified class action for relief under the Telephone Consumer Protection Act ("TCPA"), 47 U.S.C. §227. Plaintiff, now class representative, alleges that Defendant First Community Bancshares, Inc., and its subsidiary Defendant First National Bank Texas ("Defendants") violated the TCPA by placing telephone calls to her cellular telephone for nonemergency purposes, without her consent, using an "automatic telephone dialing system" ("ATDS") as defined by the TCPA, 47 U.S.C. § 227(a)(1).¹ Plaintiff seeks relief under the TCPA for herself and all others similarly situated. Defendants deny liability. The amended complaint (Doc. 41) includes general allegations asserted on behalf of the putative class and asserts Violations of the TCPA (Count I) and Willful Violations of the TCPA (Count II).

The Court certified a class under Fed. R. Civ. P. 23(b)(3) consisting of the following:

All persons who, since November 11, 2012, (1) called First National Bank Texas and First Community Bancshares, Inc., through their vendor GC services, and such call was coded "Bad/Wrong Number" and (2) were subsequently called again by First National Bank Texas and First Community Bancshares, Inc., on their cellular telephones through their vendor GC Services with an automatic telephone dialing system and such call was again coded as "Bad/Wrong Number." Excluded are customers of First National Bank Texas or First Community Bancshares, Inc.

In the Motion for Approval of Class Notice, the Class Representative proposes to identify class members as follows. Plaintiff does not have class members' names and addresses. Therefore, she proposes to identify them as follows. First, Ms. Verkhovskaya would perform a reverse lookup of the Defendants' call data to identify the "customary users" of those inbound/outbound Bad/Wrong number telephone numbers which were cellular telephone numbers at the time of the second (outbound) call. Second, from that output, Defendants would identity the name and address of the associated account numbers to exclude their customers from the class list. Third, once customers were removed, a Notice (attached as Exhibit A) would be sent to class members. Additionally, the class representative would set up an independent website which would include relevant case documents. The Class Representative proposes to follow the procedure in West v. California Service Bureau, Inc., 16-cv-3124 (N.D. Cal.), which involved a similar "wrong number" case.

While the motion for class notice was being briefed, Defendants moved for leave to file summary judgment on an issue that could be dispositive. Plaintiff joined, and the parties briefed the summary judgment motions. After the summary judgment motions were fully briefed, Defendants filed a report requesting that the Court rule on class notice prior to ruling on the summary judgments. Plaintiff opposed Defendants' report and argues that the class notice and summary judgment motions should be ruled on at the same time.

Notice for a certified Rule 23(b)(3) class generally is not optional under Rule 23(c)(2) and should be given before a ruling on the merits is issued. Brown v. Colegio de Abogados de Puerto Rico, 613 F.3d 44, 51 (1st Cir. 2010), citing Schwarzschild v. Tse, 69 F.3d 293, 295 (9th Cir.1995) ("[t]he purpose of Rule 23(c)(2) is to ensure that the plaintiff class receives notice of the action well before the merits of the case are adjudicated."). Therefore, to move this case along and to ensure class members receive notice before the merits of this action are decided, the Court will proceed to rule on this motion for class notice.

DISCUSSION

The Class Representative seeks approval of her class notice plan. To approve a class notice plan for a certified Rule 23(b)(3) class, the Court must be satisfied that the notice "clearly and concisely state[s] in plain, easily understood language:"

(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; and

(vii) the binding effect of a class judgment on members under Rule 23(c)(3).

The Court finds that Plaintiff's proposed class notice plainly satisfies requirements (i) through (vii), which Defendants do not appear to dispute.

I. General Applicable Law.

Moreover, in approving a class notice plan, "the court must direct to class members the best notice practicable under the circumstances, including individual notice to all members who can be identified through reasonable effort." Rule 23(c)(2)(B); DeJulius v. New England Health Care Employees Pension Fund, 429 F.3d 935, 943 (10th Cir. 2005). The rule, by its plainlanguage, contemplates that some class members may not be identified through reasonable effort. See Mullins v. Direct Digital, LLC, 795 F.3d 654, 665 (7th Cir. 2015) ("the rule does not insist on actual notice to all class members in all cases. It recognizes it might be impossible to identify some class members for purposes of actual notice"), citing Juris v. Inamed Corp., 685 F.3d 1294, 1321 (11th Cir.2012) (noting that "even in Rule 23(b)(3) class actions, due process does not require that class members actually receive notice" and collecting cases).

Due process and Rule 23(c)(2)(B) are generally coextensive. DeJulius v. New England Health Care Employees Pension Fund, 429 F.3d 935, 944 (10th Cir. 2005) ("The legal standards for satisfying Rule 23(c)(2)(B) and the constitutional guarantee of procedural due process are coextensive and substantially similar."). Due process does not require actual notice or actual receipt for every class member. DeJulius v. New England Health Care Employees Pension Fund, 429 F.3d 935, 944 (10th Cir. 2005). And the Court's analysis does not focus on the rate of actual notice received by class members. Id.; Integra I, 262 F.3d at 1110 (citing Eisen, 417 U.S. at 174, 94 S.Ct. 2140) (quotation omitted). Rather, class notice "must be reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections." Tennille v. W. Union Co., 785 F.3d 422, 436 (10th Cir. 2015).

When individuals cannot be identified to receive individual notice, the solution is not necessarily to deny notice, but rather, to order other types of notice. Mullins v. Direct Digital, LLC, 795 F.3d 654, 665 (7th Cir. 2015).

II Analysis of Class Notice Motion.

The Court finds that the proposed notice plan is the "best notice practicable under the circumstances" and provides "individual notice to all members who can be identified throughreasonable effort." Rule 23(c)(2)(B). The class consists of individuals who called in on their phones to Defendants and were coded "Bad/Wrong Number" in Defendants' call logs, who then were called by Defendants and were noted "Bad/Wrong Number". Customers of Defendants are excluded from the class.

To identify these customers, Ms. Verkhovskaya will perform a reverse lookup and search for who was the "customary user" of the telephone number called at the time of the call in the logs. First, Ms. Verkhovskaya will perform a reverse lookup of the Defendants call data to identify customers of those telephone numbers which were cellular phone numbers at the time of the second, outbound call. Second, Defendants will identify the name and address of the associated account numbers to exclude their customers from the class list. Finally, after customers are removed from the output, the notice will be mailed to class members. This process is similar to the one used in West v. California Service Bureau, Inc., No. 16-cv-3124 (N.D. Cal.).

The Court finds that Ms. Verkhovskaya's methods expend reasonable effort to identify class members. While there may be errors in identifying class members, Defendant has not cited to case law that indicates that is a reason to deny class notice.

Although Defendants give a number of reasons why Ms. Verkhovskaya's methods may not identify class members, they are generally speculative. Defendants arguments may be relevant to other stages of the litigation, but they are generally not something that tends to attack whether the Class Representative is giving the best notice practicable under the circumstances and expending reasonable effort to identify class members.

Defendants propose a number of scenarios where class members may not be identified, or non-class members may be sent notice inadvertently. Defendants may have valid concerns. Butthose concerns are generally issues for class certification (or decertification) or the claims administration process. See, e.g., Krakauer v. Dish Network, LLC, No. 1:14-CV-333, 2017 WL 3206324, at *7 (M.D.N.C. July 27, 2017) ("the Court will not enter an aggregate judgment against Dish in the amount of $61 million and instead will require a claims administration process that gives Dish the opportunity to reasonably challenge individual claims to class membership."); Mullins v. Direct Digital, LLC, 795 F.3d 654, 665 (7th Cir. 2015) ("They can rely, as they have for decades, on claim administrators, various auditing processes, sampling for fraud detection, follow-up notices to explain the claims process, and other techniques...