United States District Court, W.D. Arkansas, Fayetteville Division
MARK FOCHTMAN; MICHAEL SPEARS; ANDREW DANIEL; FABIAN AGUILAR; and SLOAN SIMMS, Individually, and on Behalf of All Others Similarly Situated; and CORBY SHUMATE, Individually PLAINTIFFS
DARP, INC.; HENDREN PLASTICS, INC.; and JOHN DOES 1-29 DEFENDANTS
OPINION AND ORDER
TIMOTHY L. BROOKS UNITED STATES DISTRICT JUDGE.
before the Court is Plaintiffs' Motion for Approval of
Proposed Plan of Notice (Doc. 58). Attached to the Motion is
the proposed notice to be sent to the class (Doc. 58-1).
Plaintiffs propose that Defendant DARP, Inc.
("DARP") provide them with the last known addresses
for the approximately 180 class members, and Plaintiffs will
then retain a vendor to check these addresses against the
United States Postal Service's National Change of Address
database to obtain the most current addresses. Plaintiffs
will mail the notice forms to class members by regular mail,
imprinting Class Counsel's law firm's address in the
"return-address" space on each envelope. In the
event any mailings are returned, Class Counsel state that
they will attempt to find updated addresses and re-mail the
notices. Defendants Hendren Plastics, Inc. ("Hendren
Plastics") and DARP, Inc. ("DARP") have each
filed objections to the proposed notice form, which the Court
will address below.
Hendren Plastics' Objections to the Proposed Notice (Doc.
Plastics contends that Plaintiffs have not created the best
notice practicable under the circumstances because "it
is highly likely that many of the addresses obtained from
DARP will be outdated and no longer active for the intended
recipients." (Doc. 59 at 3). To cure this problem,
Hendren Plastics suggests that Plaintiffs obtain the class
members' addresses through the Arkansas Department of
Community Correction or the Arkansas Department of
Correction, either by way of a Freedom of Information Act
Request or a subpoena. Hendren Plastics also suggests that
the envelopes containing the notice forms be marked
"NOTICE TO THOSE WHO WORKED AT HENDREN PLASTICS, INC.,
DURING THEIR REHABILITATIVE STAY AT D.A.R.P." Finally,
Hendren Plastics believes that the language in the proposed
notice is too formal and legalistic and will tend to confuse
class members about the nature of the claims and the
members' legal rights and obligations. Hendren Plastics
offers an alternate version of a proposed notice form (Doc.
59-1) that gives further guidance about the case, includes a
separate "opt-out" form to be mailed with the
notice form, and provides a link to a proposed website where
class members may access and review the pleadings filed in
the case, among other changes.
filed a Response to the Objections (Doc. 62), arguing that if
the Court approved Hendren Plastics' proposed method for
collecting class members' addresses, this would only
generate addresses for class members who were sent to DARP
through the Arkansas court system, and not through other
states' court systems. Furthermore, Plaintiffs maintain
there is no plausible reason to believe that the address
databases of the Arkansas Department of Community Correction
or the Arkansas Department of Correction will be more updated
and accurate than DARP's and/or the U.S. Postal
Service's databases. Plaintiffs also believe Hendren
Plastics' idea to mark the notice envelopes with special
writing will have the effect of signaling to class members
that the envelopes contain junk mail or solicitations. In any
event, Plaintiffs point out that Hendren Plastics has not
established that marking the envelopes in some way will
improve the chances that the letters will be opened by the
class members. Lastly, Plaintiffs flatly disagree with
Hendren Plastics that Plaintiffs' proposed notice
language is overly legalistic or confusing; Plaintiffs
believe Hendren Plastics' proposed notice form
(Doc. 59-1) is too long and argumentative, and that, by
contrast, Plaintiffs' proposed notice is brief and to the
point. Plaintiffs also cite to multiple courts that have
found that due process does not require a court to include a
separate opt-out form along with the notice. See
Doc. 62 at 5 (listing cases).
considering Hendren Plastics' objections to
Plaintiffs' proposed notice form, as well as Hendren
Plastics' counter-proposal and suggested notice, the
Court finds Plaintiffs' version to be concise, clear, and
the best form of notice practicable. The Court is unconvinced
that an opt-out form should be included with the notice, and
the Court finds no fault with Plaintiffs' proposed method
of obtaining addresses for the class members. Accordingly,
Hendren Plastics' objections are OVERRULED.
DARP's Objections to the Proposed Notice (Doc.
also suggests that Plaintiffs' proposed method for
obtaining class members' addresses will not be effective.
DARP asks the Court to order Plaintiffs to use a commercial
database resource entity to help find current mailing
addresses for each class member before mailing that member a
second notice form (if the first is returned as
undeliverable). In addition, DARP asks that Plaintiffs be
required to publish the notice in the Arkansas
Democrat-Gazette once a week for at least two
consecutive weeks. As for Hendren Plastics' proposal to
include certain language on the front of each notice
envelope, DARP disagrees with the language proposed and
points out that it never held itself out to be a
rehabilitation program; instead, DARP considered
itself a residential drug and alcohol recovery
program-a distinction DARP finds important. Aside from the
above suggestions to improve Plaintiffs proposed notice, DARP
otherwise agrees that Plaintiffs' proposal "provides
adequate notification." Id. at 3.
considering DARP's objections and Plaintiffs'
Response (Doc. 67), the Court remains unconvinced that
DARP's suggestions for improvement to the mailing process
are necessary. Although DARP contends Plaintiffs should be
ordered to use a commercial database resource entity to find
more current addresses for envelopes that are returned as
undeliverable, Plaintiffs rightly point out that at present
it is "unknown how many, if any, mailings will be
returned," and regardless, Plaintiffs agree to "use
some reasonable method of identifying potential addresses for
any notices that are returned." Id. at 1-2. As
for DARP's suggestion that notice should be published in
the local newspaper, Plaintiffs respond that DARP's
concerns about the likelihood of multiple class members'
addresses being returned as undeliverable are unfounded. In
Plaintiffs' view, even if a small number of class members
become difficult to locate, this does not justify the expense
of publishing the notice form in the newspaper.
Court agrees with Plaintiffs that there does not appear to be
a factual basis for believing, at least at this time, that a
significant number of class members' addresses provided
by DARP will be inaccurate, or that Plaintiffs' proposed
method for identifying the addresses will result in such
little success that the Court should order Plaintiffs to
publish the notice in the newspaper. DARP's objections
are therefore OVERRULED.
ORDERED that Plaintiffs' Motion for Approval of Proposed
Plan of Notice (Doc. 58) is GRANTED. The Court finds that the
proposed notice (Doc. 58-1) meets the requirements of Federal
Rule of Civil Procedure 23(c)(2)(B), and Class Counsel is
granted leave to distribute the notice to class members in
the manner set forth in the Motion.
FURTHER ORDERED that Defendant DARP, Inc. produce the names
and addresses of each class member to Class Counsel within