Drizin v Sprint Corp.
Annotate this CaseDecided on February 25, 2005
Supreme Court, New York County
Joel L. Drizin, individually and on behalf of all others similarly situated, Plaintiff,
against
Sprint Corporation d/b/a ASC TELECOM; and ASC TELECOM, INC., Defendants.
101707/02
Richard B. Lowe, J.
Defendant moves pursuant to CPLR § 904 for an order approving its proposed notice to
potential class members of the instant class action.
Background
This is a class-action lawsuit brought by Plaintiff for allegedly unfair and deceptive consumer-oriented business practices. The complaint alleges that individuals accessed Defendants' services in error because they, or someone calling them mis-dialed a toll free service telephone or "800" number advertised by certain other telephone operator service providers. On September 27, 2002, Plaintiff moved to certify a nationwide class.
By this Court's class certification order dated March 16, 2004, a New York class was certified on Plaintiffs GBL § 349 claim, which consisted of "all persons who were charged for a credit card call originating in New York State or received a collect call which was billed in New York State by the defendant through any of the numbers that are deceptively similar 'knock offs' to toll free calls services operated by other telephone companies.
Defendant now moves pursuant to CPLR § 904 for an order approving its proposed method of notice to the potential class members. Defendant proposes to notify the class members by publication. Specifically, the proposed notice will be published in several newspapers that service the entire state of New York on two separate occasions, a week apart. Additionally, the notice will remain on the Defendants website during the entire time period that published notice occurs. Defendant also asserts that Plaintiff should bear the cost of the publication.
Plaintiff, in opposition, argues the proposed notice is not the most appropriate method of notice to the class. In this case, each member of the class received a telephone bill from the defendants. Plaintiff contends that the best method of giving notice to the class is by inserting [*2]the class notices into telephone bills sent out to the telephone subscribers who have the telephone numbers which were billed. Plaintiff also argues that the proposed newspaper advertisements should be a supplement to such notices. Lastly, plaintiff argues that a Spanish translation should be included in the notice.
Discussion
The law requires that the parties provide the best notice practicable under the circumstances to class members. Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 173 (1974). CPLR § 904 (c) requires the court to consider the cost of giving notice by each method considered, the resources of the parties, and the stake of each represented member of the class, and the likelihood that significant numbers of represented members would desire to be excluded from the class.
From the outset, the Court has reviewed the defendant's proposed notice to potential class members and approves it as to form and content. It contains an adequate description of the class so that an individual may determine whether he is a member. Vickers v Home Federal Savings and Loan Ass'n of East Rochester, 56 A.D.62, 65-66 (4th Dept. 1977). It also presents a balanced statement of the potential class member's rights and liabilities and a sufficient description of the class. Id. Accordingly, the proposed notice is approved as to content.
The Court also approves the Defendants' proposed method of publication in various newspapers circulated in New York State. Notice by publication is an appropriate method of notice to the class. Colt Indus. Shareholder Litig. V. Colt, 77 NY2d 186, 566 NE2d 1160, 565 NYS2d 755 (1991). Such notice shall be made on two occasions, a week apart.
The Court also notes that Plaintiff does not dispute the content of the proposed notice, but argues only that a Spanish translation should be included. The Court agrees that a significant population within New York State requires a Spanish translation of the proposed notice. Accordingly, it is ordered that the proposed notice be circulated in one Spanish language newspaper circulated in New York State on two occasions, one week apart,. The parties may choose that newspaper which is most widely circulated and most likely to be reviewed by the most potential Spanish speaking class members. Furthermore, it is directed that a Spanish translation of the proposed notice be included on Defendants' website.
The Court now turns to Plaintiff's request that additional notice be sent to each residence/locale which possesses a phone number which discovery has found to have been billed for the alleged deceptive acts. Defendant, while aware of the phone numbers which were billed for the alleged acts, argues that the correlating locale which utilizes the number cannot be determined. Because a third party re-biller was used by the Defendant to bill consumers, it argues that it does not have the relevant addresses.
The Court rejects defendants' argument that corresponding addresses for each number cannot be determined. First, the Court finds it implausible that a telephone company cannot identify the relevant addresses. A member of the public, let alone a telephone company, may simply call directory assistance and after submitting a published number, may obtain the address using that number. Therefore, it is ordered that notice to the addresses with corresponding published phone numbers be given. Furthermore, it is ordered that reasonable efforts be made by the Defendant to identify the addresses associated with the unpublished phone numbers which have been identified as being billed by Defendant as a result of the alleged deceptive practices. [*3]Such notices will be sent to each address and it may later be determined whether the recipient possessed the phone number and was inappropriately charged during the relevant time period. The parties may choose to either include the notice in the telephone bill for each address or may choose to send a separate mailing to each identified address; whichever is practicable. The Court finds that either of the methods of notice are suitable and do not exhaust the resources of the parties and the costs associated with such notice are not unreasonable.
Lastly, Plaintiff's bald opposition to Defendant's request that Plaintiff bear the costs of giving notice to the proposed class members is rejected. CPLR §904(d) provides that unless otherwise ordered by the Court, Plaintiff shall bear the costs of notification. Plaintiff offers absolutely no reason why the Court should exercise its discretion and require the Defendant to bear the necessary costs. Therefore, it is directed that Plaintiff shall bear the costs of the notification.
Conclusion
Accordingly, the motion is granted to the extent discussed, supra and it is hereby
ORDERED that the notice of the pendency of this action shall be given to the Class pursuant to CPLR §904, and the Class pursuant to the procedure set forth in this decision and in the form set forth in the movant's memorandum in support of this motion; and it is further
ORDERED that Defendant shall provide Class counsel with those known names and addresses which correspond with the known telephone numbers billed as a result of the alleged deceptive acts in this action and such names and addresses shall be provided within thirty days of entry of this order and service of the Notice is hereby directed to be made by plaintiff either by including the notice within the telephone bill for each identified address or by a separate mailing via U.S. mail, first class, postage prepaid to all such names and addresses of potential members of the Class within thirty days of receiving the Class members' names and addresses from the defendant and it is further
ORDERED that plaintiff shall bear the costs of the notice by mailing and by publication in newspapers ; and it is further
ORDERED that the proof of mailing of the Notice of Pendency of Class Action to the potential members of the Class and proof of publication in newspapers in accordance with this Court's directive shall be filed with the Clerk and served on the defendant within 15 days of such mailing of the Notice and such publication and it is further
ORDERED that the next court conference is scheduled for May 9, 2005.
This shall constitute the Order and Decision of the Court.
Dated: February 25, 2005ENTER:
____________________
J.S.C.
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