Chinitz v. Intero Real Estate Services

Background

The court had previously certified two classes: a National Do Not Call class seeking an injunction and damages, and an Internal Do Not Call class seeking an injunction. The court was reviewing Ronald Chinitz’s proposed plan for notifying members of those classes. The plan included individual notice by email or first-class mail, indirect notice through media, a case website, and a toll-free information line. Chinitz retained Epiq Class Action & Claims Solutions, Inc. to administer the notice process.

Intero objected to parts of the plan, including the declaration supporting it, the direct-notice methods, the use of telephone-number data in a reverse-lookup process, a proposed banner advertisement on Intero’s website, and the language of the notices. The court applied Federal Rule of Civil Procedure 23(c)(2)(B), which requires the best notice practicable under the circumstances and individual notice to class members who can be identified through reasonable effort.

Court’s Analysis

The court overruled Intero’s objections to the declaration of Cameron Azari. It found that Azari had sufficient experience in class notice and could rely on the facts or data described in the declaration. The court also denied Chinitz’s request to strike Jennifer Smith’s declaration, although it did not accept Intero’s objections to the notice plan on that basis.

The court approved the direct-notice plan. It found that using a reverse lookup to identify email addresses associated with telephone numbers allegedly called by Intero was a legitimate method recognized in other Telephone Consumer Protection Act cases. The court rejected Intero’s arguments that the method was too speculative or overbroad, explaining that notice need not be perfect and that questions about who is entitled to recover can be addressed during claims administration. The court also declined to require postcard notices for people who did not open their emails.

The court ruled that Intero could receive the reverse-lookup data and the returned results for claims administration, but ordered Intero not to use that information for other purposes, including summary judgment, proceedings involving expert testimony, trial, or unrelated motions. The court struck the proposed banner advertisement on Intero’s website because Chinitz had agreed to withdraw it.

The court approved the notice forms after incorporating Intero’s proposed edits. It also required the notices to explain that potential class members could obtain an exclusion-request form from the settlement website. Exclusion requests had to be returned by mail rather than submitted electronically. The court found that the modified combination of direct and indirect notice was reasonably calculated to reach at least 70% of class members and was the best notice practicable under the circumstances.

Order

Judge Beth Labson Freeman approved in part Chinitz’s proposed class-notice plan. The court overruled Intero’s objections to the Azari declaration and overruled Chinitz’s objection to the Smith declaration. It approved the email, postcard, and long-form notices, subject to the stated changes; approved Epiq as the notice administrator; approved the direct-notice plan; and limited Intero’s use of the reverse-lookup data to claims administration.

The court ordered that email and postcard notices be sent within 30 days of the order. The last day for class members to opt out was set for 90 days after the order, and a list of opt-outs was due to be filed with the court 104 days after the order.