Northrup v. Itg Insurance Agency LLC et al

Middle District of Florida, flmd-8:2017-cv-01890

RESPONSE in Opposition re 83 MOTION for miscellaneous relief, specifically Approve Class Notice Plan filed by CyberX Group, LLC, Independent Truckers Group, Inc., Innovative Health Insurance Partners, LLC, David E Lindsey. (De Piano, David)

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PageID 826 IN THE UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION § JOHN NORTHRUP, Individually and on behalf § of a Class of Similarly Situated Individuals § § Plaintiff, § Civil Action No. 8:17-cv-01890-CEH-JSS § v. § § Innovative Health Insurance Partners, LLC § CyberX Group, LLC, David E. Lindsey; and § Independent Truckers Group, Inc.; § Defendants. § DEFENDANTS' RESPONSE IN OPPOSITION TO PLAINTIFF'S MOTION TO APPROVE CLASS NOTICE PLAN Defendants Innovative Health Insurance Partners, LLC ("IHIP"), CyberX Group, LLC ("CyberX"), David E. Lindsey, and Independent Truckers Group, Inc. ("ITG"), (collectively, "Defendants") respond to Plaintiff's Motion to Approve Class Notice Plan [Dkt. 83], as follows: INTRODUCTION A class notice plan is not a mere formality. The class notice must (i) structure a mechanism that effectively reaches actual class members and provides them with accurate information such that they can make informed decisions; and (ii) do so in a manner that preserves the due process rights of both class members and Defendants. See Gibbs Props. Corp. v. Cigna Corp., 196 F.R.D. 430, 442 (M.D. Fla. 2000) ("The class definition identifies the persons who are entitled to relief, bound by final judgment, and entitled to notice under Rule 23(b)(3). As such, it implicates substantial due process rights for both class members and the Defendants.") PageID 827 Plaintiff's proposed class notice plan fails to accomplish these goals because it completely ignores the very representations Plaintiff made to this Court in order to obtain class certification, eviscerates Defendants' due process rights by preventing Defendants from contesting whether class members have standing in the future, and contains inaccurate information in the notices. OBJECTIONS A. Plaintiff's Proposed Class Notice Plan Fails To Address Lingering Issues Relating To Receipt Of Offending Text Messages While the Court held that "Plaintiff need not show at this [certification] stage that every possible class member has standing" the Court deferred the question of absent class member standing. It noted that "courts [outside the Eleventh Circuit] have found that the class should be defined in such a manner that anyone within it would have standing." [Dkt. 79, Order at 4 (emphasis added).] Now that this case has proceeded past class certification, Plaintiff's class notice plan cannot simply sweep the issue of standing under the rug. Critically, this Court observed that, after Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016), district courts in the Eleventh Circuit have held standing depends on "receipt of an unsolicited text message." [Id. at 5 ("After Spokeo, district courts in the Eleventh Circuit, including at least one in this district, have continued to hold that the receipt of an unsolicited text message, without more, constitutes an injury.")] And a decision from the Southern District of Florida has applied this to class members, holding "receipt of a text is a prerequisite to being a class member and is a requirement to have standing." Mohamed v. Off Lease Only, Inc., No. 15-cv-23352, 2018 U.S. Dist. LEXIS 5600, at *5 (S.D. Fla. Jan. 12, 2018). DEFENDANTS' RESPONSE TO MOTION TO APPROVE CLASS NOTICE PLAN Page 2 PageID 828 Plaintiff requested and obtained a class premised on subscribers. Nonetheless, administration of the class requires determining which of those subscribers actually received text messages so as to have standing. As noted by the Southern District of Florida in Keim, phone subscribers are not just one-subscriber/one-user/one-phone, but rather family (or corporate) plans in one subscriber's name with multiple users and phones on that plan. See Keim v. ADF MidAtlantic, LLC, No. 12-80577-CIV-MARRA, 2018 U.S. Dist. LEXIS 204548, at *20-21 (S.D. Fla. Dec. 3, 2018) ("A non-subscribing user might be a family member on a family plan or an employee on a business plan."). Identifying which subscribers are also recipients (and any recipients who may not have been subscribers) is critical to the question of standing. It is also necessary to properly administer the class without the undue expense of sending notice to mere recipients or mere subscribers. Plaintiff now argues that the Court's granting of class certification blesses its present method of class administration. [See Dkt. 83, Pl. Mot. to Approve Class Notice Plan, at 5 n.1 (arguing that the Order granting class certification "held that class members are 'clearly ascertainable' through the administratively feasible method" proposed by Plaintiff in the present Motion).] But the method of class administration set forth by the Motion omits the very heart of what Plaintiff proposed in support of class certification—that Plaintiff would obtain monthly statements containing call and text messaging logs. In particular, Plaintiff's certification briefing told this Court that "[t]he class definition is defined to make the class member the subscriber of the cell phone number on June 30, 2017, the date the text was sent. This can be objectively demonstrated by the subscriber's monthly cell phone statement…" and that class membership "can be verified by requiring class members to demonstrate via their phone bill or statement covering June 30, 2017, that the number was DEFENDANTS' RESPONSE TO MOTION TO APPROVE CLASS NOTICE PLAN Page 3 PageID 829 assigned to a cell phone on that date." [Dkt. 74, Pl. Mot. for Class Certification, at 2 and 4 (emphasis added).] And this Court expressly relied on these representations in granting class certification: Defendants argue the class is not ascertainable because Plaintiff has not identified a method to determine which of the listed phone numbers were assigned to cellular phones at the time the text message was delivered. To the contrary, Plaintiff has described that class members may be objectively identified by reference to a subscriber's monthly statement which would show whether the listed phone number was associated with a cellular telephone on the date the text message was delivered. Defendants also argue that Plaintiff does not explain how he would distinguish between those who own the cellular telephone number ("owners") and those who regularly use the cellular telephone number but who may not own it ("regular users"). Moreover, Defendants conclude, any such attempt to identify who is an "owner" and who is a "regular user" would be "fraught with individualized inquiry." Doc. 75 at p. 4. But such information could be obtained from cell phone carrier documentation, or from inquiries to subscribers. [Dkt. 79, Order at 9 (emphasis added).] To be clear, this is not an attempt to relitigate class certification. Prior to discussions with Plaintiff on the class notice plan, Defendants reasonably assumed Plaintiff would abide by his representations made in class certification briefing that Plaintiff would obtain the monthly statements of any potential class member. This would have appropriately preserved the ability to address standing later in this litigation. But absent following through with the representations that were relied on by the Court in certifying this class, standing cannot be addressed at any stage of this litigation. Plaintiff should not be permitted to backtrack from the representations it made in support of obtaining class certification. The pre-notice steps of the administrative plan should gather information identifying which user received text messages by obtaining monthly subscriber statements covering June 30, 2017—either from the potential class members themselves or the DEFENDANTS' RESPONSE TO MOTION TO APPROVE CLASS NOTICE PLAN Page 4 PageID 830 carriers—to be consistent with Plaintiff's representations to this Court and to preserve Defendants' right to litigate the issue of standing at a later stage. B. Plaintiff's Proposed Class Notice Improperly States That All Recipients Of Class Notice Are Class Members Defendants thought agreement had been reached on changing all of the notice references from "if you received this notice you are in the class" to "if you received this notice you may be in the class." This is essential because of the standing question raised above. This precise issue was addressed by Mohamed, which held that potential standing issues rendered it misleading to state that anyone receiving class notice was definitively a class member: Defendant objects to Plaintiff's "Email Notice" (Ex. A), because the Email Notice states, "You have received this email because records show that you are a member of the Certified Class." (emphasis added). It is possible that individuals receiving notice may not be class members for various reasons, including that they did not receive a text message. It is therefore misleading to state they are definitely a class member. Mohamed, 2018 U.S. Dist. LEXIS 5600, at *5 (S.D. Fla. Jan. 12, 2018) (emphasis in original). Thus, the long and short form notices should properly reflect the truth that the notice recipients are only possibly class members. C. Opt-Out The proposed plan does not adequately set out appropriate opt-out procedures for the unique circumstances of this case. For the opt-out period, at a minimum there should be a 60-day opt-out window after the last of the initial notices are sent by email and mail (which would include those that come back as undelivered as resent). See Greco v. Ginn Dev. Co., LLC, 635 Fed. Appx. 628, 634 (11th Cir. 2015) (noting courts have consistently held 30 to 60 days as reasonable opt out period). DEFENDANTS' RESPONSE TO MOTION TO APPROVE CLASS NOTICE PLAN Page 5 PageID 831 D. Plaintiff's Proposed Class Notice Inaccurately Describes Class Members' Obligations To Pay Fees And Costs Section 9 of the proposed long form notice erroneously states that class members "won't have to pay these fees and expenses" of the litigation. This is false because the TCPA is not a fee shifting or cost shifting statute, and the default rule is "the plaintiff ordinarily bears the costs of identifying the members of the class." Keim, 2018 U.S. Dist. LEXIS 204548 at *20-21 (citing Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 356 (1978)). To ensure that potential class members are not misinformed, Defendants propose the following change to Section 9: "If the Class is awarded money or benefits, Class Counsel will ask the Court for fees and expenses. Under the TCPA, those fees and expenses will be deducted from the awarded money or benefits. If the parties settle, they could agree to have the fees and expenses separately paid by Defendants." Wherefore, Defendants respectfully request entry of an Order denying Plaintiff's Motion to Approve Class Notice Plan, requiring the parties to confer on the best means for serving the necessary class discovery discussed herein, modifying the long and short form notice consistent with the above, and awarding Defendants any other relief deemed appropriate. [signature block on next page] DEFENDANTS' RESPONSE TO MOTION TO APPROVE CLASS NOTICE PLAN Page 6 PageID 832 Dated: February 22, 2019 Respectfully Submitted, /s/ Bill S. Richmond_ ________________________ WILLIAM S. RICHMOND, ESQ. (Trial Counsel) Texas Bar No. 24066800 (Admitted Pro Hac Vice) PLATT CHEEMA RICHMOND PLLC 1201 N. Riverfront Blvd., Suite 150 Dallas, Texas 75207 Telephone: 214.559.2700 Facsimile: 214.559.4390 brichmond@pcrfirm.com -and- /s/ David J. DePiano DAVID J. DePIANO, ESQ. Florida Bar No. 0055699 SHAPIRO BLASI WASSERMAN & HERMANN, P.A. 7777 Glades Road, Suite 400 Boca Raton, FL 33434 Telephone: 561.477.7800 Facsimile: 561.477.7722 ddepiano@sbwh.law COUNSEL FOR DEFENDANTS INNOVATIVE HEALTH INSURANCE PARTNERS, LLC; CYBERX GROUP, LLC; DAVID E. LINDSEY; AND INDEPENDENT TRUCKERS GROUP, INC. DEFENDANTS' RESPONSE TO MOTION TO APPROVE CLASS NOTICE PLAN Page 7 PageID 833 CERTIFICATE OF SERVICE The undersigned counsel for Defendants hereby certifies that on February 22, 2019, that the foregoing document is being sent via FedEx Mail and Electronic Mail to Plaintiff's counsel as listed on the attached Service List (via CM/ECF). s/ David J. DePiano___________ SERVICE LIST Cory S. Fein 712 Main St., Suite 800 Houston, TX, 77002 Telephone: (281) 254-7717 Facsimile: (530) 748-0601 E-mail: cory@coryfeinlaw.com Seth M. Lehrman 425 North Andrews Ave., Suite 2 Fort Lauderdale, FL 33301 Telephone: (954) 524-2820 Facsimile: (954) 524-2822 E-mail: seth@epllc.com DEFENDANTS' RESPONSE TO MOTION TO APPROVE CLASS NOTICE PLAN Page 8