So I need to get on the road shortly–the petrified forest isn’t going to be around forever you know–but wanted to do one more quick one for you.
In Lenorowitz v. Mosquito Squad, 2023 WL 2612874 (D. Conn. March 23, 2023) the Court approved a notice plan in a certified TCPA class action.
Previously on Mosquito Squad–please let that be the title of a Saturday morning cartoon one day–the Court had determined a class of individuals who received marketing calls without PEWC was properly certified.
But no list of numbers that were exclusively marketing was supplied. So how do we give notice when some people who received calls might have received only informational calls?
Correct answer is some form of “who cares” because notice is just notice, it is not a trial and responses to notice–although they may help limit the class–do not alter ultimate substantive issues. Indeed, if a Defendant is smart they’d want to OVER NOTICE so that issues arise when non-injured class members begin opting out and to create questions of fact at trial.
But hey, what do I know?
Not what Mosquito Squad’s lawyers know, apparently. They fought tooth and nail to limit the scope of notice and… it didn’t go well.
I’ll skip the blow by blow–class litigators should read the case for themselves anyway–but it suffices to say the Plaintiff’s notice plan was adopted and the Court rejected the Defendant’s whacky make-class-members-sign-an-affiavit-to-opt-in-at-the-notice-stage approach.
Here is the ultimate order, which has some nuance to it around proving cell phone and residential usage–so pay attention all ye high craftsman of class procedure architecture:
Plaintiff’s motion to approve class notice form and procedures is granted with modification. All customers listed as Mobile numbers on the final joint Class Notice list will receive the Class Notice; for the 10% of individuals whose phone numbers are listed as Landlines, they will receive both Plaintiff’s Class Notice and the affidavit form to confirm whether their landline was residential or commercial. Defendant will reserve its right to require confirmation that the mobile numbers actually belonged to wireless phones rather than landlines; the exact method of that obtaining that confirmation will be determined if this case progresses to the claim submission stage.
The Court orders the following:
1. Defendant shall produce the unredacted call records with the customers’ names, addresses, telephone numbers, and identification of which type of call they received to Plaintiff for purposes of notice, under protective order to preserve customer privacy if need be, by April 6, 2023;
2. Plaintiff and Defendant will confer and coordinate to cross-reference the unredacted call records with Mobile Sphere’s call records, remove any numbers associated only with non-telemarketing calls, and submit a joint proposed Class Notice list by April 24, 2023 for the Court’s final approval;
3. Also by April 24, 2023, Plaintiff shall submit a modified Class Notice with the Claim Administrator’s contact information and website added for the Court’s final approval