Lyngaas v. Curaden AG

         CLASS ACTION

          OPINION & ORDER GRANTING PLAINTIFF'S MOTION FOR ORDER APPROVING CLASS NOTICE AND SETTING A DATE FOR OPT-OUTS (Dkt. 93)

          MARK A. GOLDSMITH, UNITED STATES DISTRICT JUDGE

         On May 23, 2019, this Court entered an order certifying the following class: “All persons or entities who were successfully sent one or more facsimiles in March 2016 offering the Curaprox ‘5460 Ultra Soft Toothbrush' for ‘.98 per/brush' to ‘dental professionals only.'” 5/23/2019 Op. & Order at 38 (Dkt. 89). Plaintiff Brian Lyngaas now asks this Court to enter an order approving his proposed class notice, setting a thirty-day deadline for class members to opt out, and directing dissemination of the class notice by facsimile and by U.S. mail (Dkt. 93). Defendants Curaden AG and Curaden USA object to certain portions of Lyngaas' proposed notice.

         The Federal Rules require the Court to provide class members “the best notice that is practicable under the circumstances, ” made by U.S. mail, electronic means, or other appropriate means. Fed.R.Civ.P. 23(c)(2)(B). The notice must clearly and concisely state:

(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).

Fed. R. Civ. P. 23(c)(2)(B)(i)-(vii).

         The Court has reviewed Plaintiff's proposed notice and finds, subject to certain provisions discussed further below, that it satisfies each of the requirements of Rule 23(c)(2)(B). It defines the class; describes the pending lawsuit, including the positions of the parties; informs class members that they may retain an attorney if they wish; sets forth a class member's options (to remain in the class or exclude herself from the class) and explains the risks of each; puts forth the procedure for requesting exclusion, including the timeframe for a class member to do so and the method the class member must use; informs the class member that all class members will be bound by the result of the lawsuit; and directs a class member to contact class counsel with any specific questions. Notice of Pending Class Action, Ex. A to Pl. Mot. (Dkt. 93-2). All of this information is set forth in plain, easy-to-understand language.

         As for the method of providing this notice, Plaintiff proposes sending the notice to each of the fax numbers that he claims received one or more of the faxes at issue in the case. Pl. Mot. at 6. For each fax that cannot be sent successfully after three attempts, Plaintiff proposes sending the notice by U.S. Mail to the address last known to have been associated with that fax number. Id. Plaintiff points to several courts that have approved notification via faxes in TCPA class action cases. See, e.g., Family Medicine Pharm., LLC v. Holdings, No. 15-0563, 2016 WL 7320885, at *7 (S.D. Ala. Dec. 14, 2016) (observing that “the vast majority of class members should be readily reachable via those same fax numbers to which the offending faxes giving rise to their claims were sent”); City Select Auto Sales, Inc. v. David Randall Assocs., Inc., No. 11-2658, 2014 WL 413533, at *1-*2 (D.N.J. Feb. 3, 2014) (noting “the irony of using faxes to disseminate class notice in a lawsuit regarding unsolicited fax advertisements, ” but concluding ...