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Lee v. Enterprise Leasing Company-West

United States District Court, D. Nevada

September 22, 2014

LYDIA LEE and CAROLYN BISSONETTE, individually and on behalf of all others similarly situated, Plaintiffs,


LARRY R. HICKS, District Judge.

Before the Court is Plaintiffs Lydia Lee and Carolyn Bissonette's ("Plaintiffs") Motion for Approval of Proposed Notice, Plan for Distribution of Notice, and Setting Hearing Date for Application for Attorneys' Fees and Costs. Doc. #104.[1] Defendants Enterprise Leasing Company-West and Vanguard Car Rental USA, LLC ("Defendants") filed a Response (Doc. #107), to which Plaintiffs replied (Doc. #109).

I. Facts and Procedural History

This is a class action filed on behalf of persons who rented cars at Nevada airports from Defendants. In return for the right to operate on-site at these Nevada airports, rental car companies like Defendants are required to pay a percentage of their gross revenues to the airports as "concession fees." The companies pass along the fees to their customers as surcharges labeled "airport concession recovery fees." At all relevant times, Defendants "unbundled" the surcharges from the base rental rate, such that the rental rate quoted to customers did not include the additional "airport concession recovery fee, " which was itemized separately in the rental agreement.

On June 24, 2014, the Court granted summary judgment in favor of Plaintiffs, finding that Defendants' practice of unbundling the surcharges from the base rental rate violated Nevada Revised Statute ("NRS") § 482.31575. Doc. #102. The Court further determined that Plaintiffs were entitled to restitution of any airport concession recovery fees that they paid to Defendants during the class period. Id. at 22-30. Finally, the Court granted class certification pursuant to Federal Rule of Civil Procedure 23. Doc. #103. Plaintiffs now move the Court to approve notice to the class.

II. Legal Standard

Under Federal Rule of Civil Procedure 23(c)(2)(B), "the court must direct to class members the best notice that is practicable under the circumstances." This notice must clearly and concisely state the following:

(i) the nature of the action; (ii) the definition of the class certified; (iii) the class claims, issues, or defenses; (iv) that a class member may enter an appearance through an attorney if the member so desires; (v) that the court will exclude from the class any member who requests exclusion; (vi) the time and manner for requesting exclusion; and (vii) the binding effect of a class judgment on members under Rule 23(c)(3).

In addition, class members must be notified of motions for attorney's fees and nontaxable costs. Fed.R.Civ.P. 23(h)(1).

III. Discussion

Plaintiffs propose a notice to class members nearly identical to that approved by the Court in Sobel v. Hertz, 3:06-cv-00545-LRH-RAM (D. Nev.) (" Sobel "). See Sobel, Doc. #362, Doc. #403. Plaintiffs also seek to provide notice to the class members in the same manner as that approved by the Court in Sobel. See id. First, Plaintiffs request that notice be sent by e-mail to class members, when known, and by first class mail to all class members whose names and addresses appear in Defendants' records. Second, Plaintiffs request that the Court require Defendants to pay the cost of notice, without requiring Plaintiffs to post a bond. Defendants challenge Plaintiffs' proposals in both regards. Defendants also urge that Plaintiffs' proposed notice must be modified to comply with Federal Rule of Civil Procedure 23.

A. The Form of Notice

In class actions certified under Rule 23(b)(3), "the court shall direct to the members of the class the best notice practicable under the circumstances, including individual notice to all members who can be identified through reasonable effort." Under this "best notice practicable" standard, courts retain considerable discretion to tailor notice to the relevant circumstances: "The determination of what efforts to identify and notify are reasonable under the circumstances of the case rests in the discretion of the judge before whom the class action is pending." 3 William B. Rubenstein, Alba Conte, and Herbert B. Newberg, Newberg on Class Actions § 8:2 (4th ed. 2007) (citation omitted). "When the names and addresses of most class members are known, notice by mail is usually preferred." See id.; see also Manual for Complex Litig. § 21.311 (4th ed. 2004).

Here, as in Sobel, the Court finds that notice by first class mail in combination with email notice is the "best notice practicable under the circumstances." In Sobel, the Court found that both email and first-class mail notice for all class members was appropriate due to the defects in each approved method of notice individually (i.e., the sophistication of email filters and the low likelihood that people open unrecognized mail, In re Lupron Mktg. & Sales Practices Litig., 228 F.R.D. 75, 85 n.21 (D. Mass. 2005) (citing a study showing that 75% of direct mail is thrown away by the recipient or the recipient's "gatekeeper" ...

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