United States District Court, E.D. Michigan, Southern Division
BRIAN LYNGAAS, D.D.S., individually and as the representative of a class of similarly situated persons, Plaintiff,
CURADEN AG, et al. Defendants.
OPINION & ORDER GRANTING PLAINTIFF'S MOTION
FOR ORDER APPROVING CLASS NOTICE AND SETTING A DATE FOR
OPT-OUTS (Dkt. 93)
A. GOLDSMITH, UNITED STATES DISTRICT JUDGE
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.
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
(vi) the time and manner for requesting exclusion; and
(vii) the binding effect of a class judgment on members under
Fed. R. Civ. P. 23(c)(2)(B)(i)-(vii).
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.
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 ...