ORDER

R. BROOKE JACKSON, District Judge.

This case is before the Court on the plaintiffs' motion to provide notice to potential class members. ECF No. 138. The parties have conferred on a proposed notice and notice plan, but defendant Goodyear Tire & Rubber Co. ("Goodyear") still objects to certain portions of the notice and plan. See ECF No. 146. Plaintiffs contend that Goodyear has no standing to object at this stage of the proceedings, and they also offer substantive reasons why Goodyear's objections are misplaced. The issue is fully briefed and ripe for review by this Court. For the reasons stated below, I grant plaintiff's motion [ECF No. 138], with certain modifications, and attach a copy of the notice to this order.

I. Standard for Class Notice

Federal Rule of Civil Procedure 23(c)(2)(B) sets out the requirements for notice to classes certified under Rule 23(b)(3). The rule states that

Fed. R. Civ. P. 23(c)(2)(B).

II. Goodyear's Standing to Object

As a threshold matter, plaintiffs contend that Goodyear has no standing to object to their proposed notice to the class. I am not convinced by plaintiffs' citations that Goodyear lacks standing to object to the content of the notice. None of the cases cited is a controlling authority, and it seems fair and prudent to let the defendant offer its own suggestions about how the notice meets (or fails to meet) Rule 23's requirements. Therefore, I conclude that Goodyear's objections may be considered for their persuasive value.

III. Disputed Language

a. Effect of Opting-Out

Goodyear wants failure to opt out to preclude all class members from bringing any future claims related to deficiencies in Entran 3, not simply any claims based on a theory of strict liability for design defect. ECF No. 146 at 2. Goodyear bases this position on the plaintiffs' earlier voluntary dismissal of all non-strict liability for design defect claims. But such a broad definition of the scope of the class would sweep in more claims than were certified for determination as a class action. The class was certified to determine liability for design defect. The voluntary dismissal occurred before certification. Therefore, plaintiffs' language more accurately describes the effect of remaining in the litigation.

b. "Do Nothing" Box

Goodyear and plaintiffs disagree about how to describe what rights class members are giving up by remaining in the litigation. This appears to be a rehashing of the same arguments addressed above. Again, because plaintiff's language is more specifically tailored to the purposes for which the class was certified—i.e. to determine liability for design defect—the Court adopts plaintiff's proposed modification to the notice.

c. Issue to Be Determined at Trial

Again, Goodyear objects to the plaintiff's description of the issues to be determined at trial. And again, plaintiffs' language is more accurate. The class was certified to determine strict liability for design defect. ECF No. 122 at 20. As causation is an element of that liability, general principles of causation will be addressed at trial. Of course, individual damage trials might involve more individualized inquiries into causation, but that topic need not be addressed in this notice.

d. The "Inevitable Failure" Theory

I agree with plaintiffs that an accurate notice—one that alerts potential class members of their claims—must inform those members that they are members of the class even if their Entran 3 has not yet manifested any defect. I can also sympathize with Goodyear that using the phrase "inevitable failure" goes beyond the plaintiffs' theory into the realm of argument. Therefore I have crafted my own language in the notice attached to this Order.

e. The Image

I do not understand Goodyear's objection to the photograph included in the proposed notice. If anything, the image will assist potential class members in identifying Entran 3 if it is present in their homes. That Goodyear has not offered up any alternative images reinforces my conclusion here. Therefore, the photograph is retained in the final notice.

f. Internet Banner Advertisements

Finally, Goodyear objects to the use of online banner advertisements in the notice plan. Specifically, Goodyear believes that the fact that the advertisements will be visible to an estimated 41 million viewers will give the misleading impression that Entran 3 is causing widespread damage. I disagree, and even if Goodyear's fears are well-founded I fail to see how that would affect the accuracy of the notice or the due process interests of alerting all potential class members. Potential class members will either have damage in their home that might be the result of Entran 3 or they will not. And the opinions of people who are not potential class members, provided they are not also potential jurors, are irrelevant to this litigation. Therefore the banner advertisements proposed by the notice plan will be permitted by the Court. I will note, however, that the potential exists for an advertisement targeting 41 million consumers to cause undue harm to Goodyear's image. Therefore the internet advertisement should not identify Goodyear. After all, it appears that Goodyear's name appears nowhere on the Entran 3 tubing and that potential class members need not be informed of Goodyear's connection to the product in order to determine their membership in the class.

IV. Conclusion

Therefore plaintiff's motion [ECF No. 138] is GRANTED. The Court-approved notice and email to contractors are attached to this order. The Court finds that this notice is the best practical way of providing the notice as required by Rule 23 and the due process requirements associated with class action litigation. Class Members will have until December 5, 2014 to opt out.

Any member of the Class who wishes to be excluded from the Class must send a written request for exclusion to the Class Counsel so that it is received before the close of the opt out period. Members of the Class may not exclude themselves by filing requests for exclusion as a group or class, but must individually and personally file a request for exclusion with Class Counsel.

Any member of the Class who fails properly and timely to seek exclusion from the Class shall be bound by all the terms and provisions of the Class, whether or not such person objected to the Class and whether or not such person made a claim upon, or participated in, the Class.

Any person or entity that does not elect to be excluded from the Class may, but need not, enter an appearance through his or her own attorney. Class members who do not enter an appearance through their own attorneys will be represented by Class Counsel.

All members of the Class who do not properly request exclusion from the Class are enjoined from proceeding against Goodyear for any claim of "strict liability for design defect" for which the Court certified the Class.

Moreover, plaintiff's proposed notice plan is approved as revised and is attached to this Order. Plaintiffs may immediately begin implementing the notice plan according to their proposed schedule.

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

NOTICE OF CLASS ACTION

If you own or owned a home, building or other structure in the State of Colorado with a radiant heating system containing Entran 3 heating hose, a class action lawsuit may affect your rights.

A federal court authorized this Notice. This is not a solicitation from a lawyer.

• Three Colorado homeowners have sued The Goodyear Tire & Rubber Co., alleging that its design of Entran 3 hose used in radiant heating systems is defective and will fail. Entran 3 was manufactured by Goodyear between 1992 and 1996.

• You may be part of this class action if you own or owned a home, building or other structure in the state of Colorado that contains Entran 3 radiant heating hose. "You" includes persons, trusts, corporations, partnerships, associations, and/or entities, including governmental entities. The Entran 3 hose could be installed in your property as an in-slab, baseboard, and/or exterior sidewalk/driveway snowmelt system.

• The case scheduled for trial on January 5, 2015. There is no money available now and no guarantee that there will be. However, your rights are affected and you have a choice to make now.

• Lawyers must prove at a trial regarding Goodyear's liability that Entran 3 is defective. If that is established, then there will be additional proceedings, after which you may be eligible for money or other benefits from Goodyear.

• Your rights and options are explained in this notice. To ask to be excluded, you must act by December 5, 2014.

BASIC INFORMATION

1. WHY WAS THIS NOTICE ISSUED?

This notice was issued because a federal Court has "certified" this case to proceed to trial on the issue of Goodyear's liability for product defect on a class-wide basis. If you own or owned a home, building or other structure in the state of Colorado with a radiant heating system containing an Entran 3 hose, you may have legal rights and options in this case. This notice explains all of these things.

Judge R. Brooke Jackson of the United States District Court for the District of Colorado is overseeing this class action. The case is known as Helmer et al v. Goodyear Tire & Rubber Co., 1:12-cv-00685. The people who sue are called the Plaintiffs. The company they are suing, Goodyear Tire & Rubber Co., is called the Defendant or Goodyear.

2. WHAT IS THIS LAWSUIT ABOUT?

The lawsuit claims that Goodyear designed and manufactured Entran 3 radiant heating hose with alleged defects that will cause the hose to degrade and fail sooner than expected or in some instances have already caused the hose to fail. The lawsuit asks for money to be paid to people and entities that own or owned homes, buildings and structures in Colorado that contain Entran 3 radiant heating hose. Goodyear denies the claim and all of the allegations in the lawsuit.

3. WHAT IS A CLASS ACTION?

In a class action, one or more people, called Class Representatives (in this case David Helmer and Felicia and Michael Muftic) sue on behalf of all people who have similar claims. Together, these people are called a Class or Class members. One court and one jury resolve the common issues for all Class members, except for those who exclude themselves from the class action. In this case, if a jury finds that Entran 3 is defectively designed and that Goodyear is legally responsible for that defective design, Class members will have the opportunity in a separate phase to show the court how they have been, or will be, damaged and to seek compensation.

4. WHY IS THIS LAWSUIT A CLASS ACTION?

The Court decided that this lawsuit could move toward trial as a class action on a claim of "strict liability for design defect." More information about why this is a class action can be found in the Court's Memorandum Opinion and Order, which is available at www.Entran3COclass.com.

THE CLAIM IN THE LAWSUIT

5. WHAT DOES THE LAWSUIT SAY IS WRONG?

The lawsuit claims that Goodyear designed and manufactured Entran 3 radiant heating hose with alleged defects that will cause the hose to degrade and fail sooner than expected or in some instances have already caused the hose to fail. The lawsuit asks for money to be paid to people and entities that own or owned homes, buildings and structures in Colorado that contain Entran 3 radiant heating hose. Goodyear denies the claim and all of the allegations in the lawsuit.

More information about the allegations of this lawsuit can be found in the Plaintiffs' Amended Class Action Complaint, which is available at www.Entran3COclass.com.

6. HOW DOES GOODYEAR ANSWER?

Goodyear denies the claim and all of the allegations in the lawsuit and asserts that it acted responsibly in the design, development, and manufacture of the Entran 3 heating hose and that the hose is not defective. More information on Goodyear's Answer to the claim can be found in Goodyear's Answer to the Amended Complaint, which is available at www.Entran3COclass.com.

7. HAS THE COURT DECIDED WHO IS RIGHT?

No decision about whether the Plaintiffs or Goodyear is right has been made. The case has been scheduled for trial for January 5, 2015.

8. WHAT ARE THE PLAINTIFFS ASKING FOR ON BEHALF OF THE CLASS?

Plaintiffs are asking that money be paid to Class members for damages to their homes, buildings and structures as a result of the Entran 3 radiant heating hose. They are also asking for attorneys' fees and costs.

9. IS THERE ANY MONEY AVAILABLE NOW?

No, there is no money available now because the jury has not decided whether Entran 3 is defective. The judge determined that this case will proceed in phases. In the first phase, a jury will decide if Entran 3 hose is defective as the lawsuit claims. In the second phase, which will only occur if a jury finds that all Entran 3 hoses are defective, there will be further proceedings on individual claims. There is no guarantee that money will ever be awarded or obtained; however, if Entran 3 is determined to be defective, you will be notified about your right to seek damages in subsequent proceedings.

MEMBERS OF THE CLASS

10. HOW DO I KNOW IF I AM PART OF THE CLASS?

You are part of the class if you own or owned a home, property or structure in the state of Colorado that contains Entran 3 radiant heating hose. "You" includes all persons, trusts, corporations, partnerships, associations, and/or entities, including governmental entities, who own or owned real property in Colorado containing Entran 3.

11. HOW DO I KNOW IF I HAVE ENTRAN 3 RADIANT HEATING HOSE?

If you have a radiant heating system in your home or your driveway or walkways, you will want to determine whether it is Entran 3 hose. Entran 3 is a rubber hose, typically with an orange cover and the name "entran 3" or "entran 30394" stamped on it. A good place to look is where the hose connects to a manifold, connects to a boiler or enters the walls, ceiling or floor. If you cannot find any stamp, then you may wish to call your plumber or heating contractor to have them inspect for you. And of course, you can always consult your paperwork from when the house was built.

The picture below illustrates what Entran 3 hose and the stamp look like.

12. I'M STILL NOT SURE IF I'M INCLUDED.

If you are still not sure whether you are included, you can visit the website www.Entran3COclass.com, call toll-free 1-800-000-0000, or write to Entran 3 Co Class, c/o Angeion Group, PO Box 0000, Novato, CA 94949-0000 for more information.

YOUR RIGHTS AND OPTIONS

13. WHAT HAPPENS IF I DO NOTHING AT ALL?

If you elect to remain in the class, you will be legally bound by all orders and judgments of the Court, and you will not be able to sue or continue to sue Goodyear in a different case alleging claims that are presently included in this class action. However, if Goodyear is found to be liable based on the defective design and manufacture of Entran 3, you will notified about your right to seek damages in subsequent proceedings.

14. WHAT HAPPENS IF I EXCLUDE MYSELF?

If you exclude yourself from the Class, you will not be legally bound by the Court's judgments and you will keep any rights you may have to sue Goodyear in a different lawsuit, now or in the future. However, you will not be able to get any money or benefits from this lawsuit if any are awarded or obtained as a result of the trial or any settlement.

15. HOW DO I ASK TO BE EXCLUDED?

To exclude yourself, send a letter that says you want to be excluded from the lawsuit bearing the caption Helmer et al v. Goodyear Tire & Rubber Co., 1:12-cv-00685. Include your name, address, telephone number, and signature. You must mail your exclusion request letter so that it is postmarked by December 5, 2014, to: Entran 3 Co Class, c/o Angeion Group, PO Box 0000, Novato, CA 94949-0000.

THE LAWYERS REPRESENTING YOU

16. DO I HAVE A LAWYER IN THIS CASE?

Yes. The Court appointed Rick D. Bailey, David K. TeSelle and Seth A. Katz of Burg Simpson LLP; Charles J. LaDuca, Michael J. Flannery and William H. Anderson of Cuneo Gilbert & LaDuca LLP; Gary E. Mason and Jason S. Rathod of Whitfield Bryson & Mason LLP; Robert K. Shelquist of Lockridge Grindal & Nauen P.L.L.P., Michael McShane of Audet & Partners, LLP and Daniel C. Levin of Levin, Fishbein, Sedran & Berman to represent you and other Class members as Class Counsel. These lawyers have experience handling similar cases. More information about these law Firms and lawyers working for them is available at www.burgsimpson.com, www.cuneolaw.com, www.wbmllp.com, www.locklaw.com, www.audetlaw.com and www.lfsblaw.com. Complete contact information for these law firms can be found at www.Entran3COclass.com.

17. SHOULD I GET MY OWN LAWYER?

You do not need to hire your own lawyer because Class Counsel is representing you and all the other members of the Class. You can hire your own lawyer, who may ask to appear in Court for you in this case, if you want someone other than Class Counsel to speak for you, but you will have to pay that lawyer.

18. HOW WILL THE LAWYERS BE PAID?

If Class Counsel obtains money or benefits for the Class, they will ask the Court for fees and expenses. If the Court grants their request, the fees and expenses will either be deducted from any money obtained for Class members or paid separately by Goodyear. You will not personally have to pay any of these fees and expenses.

THE TRIAL

19. HOW AND WHEN WILL THE COURT DECIDE THE CASE?

The issue of Goodyear's liability including whether Entran 3 is defective will be decided at a trial that has been scheduled to begin on January 5, 2015. The trial will take place at the United States District Court for the District of Colorado, Alfred A. Arraj United States Courthouse, 901 19th Street, Denver, Co 80294-3589.

20. DO I HAVE TO COME TO COURT?

You do not have to come to Court unless you choose to do so. Class Counsel will present the case for the Plaintiffs, and the lawyers for Goodyear will present their defenses. You and/or your own lawyer may appear in Court for this case at your own expense.

21. WILL I GET MONEY AFTER THE TRIAL?

If Class Counsel obtains a judgment that Goodyear is legally responsible for designing a defective product, you will be notified about the next phase of the lawsuit in which you will have an opportunity to seek damages. You will also be advised of any other options you may have at that time. Updated information about the case may be posted on the website, www.Entran3COclass.com, as it becomes available.

GETTING MORE INFORMATION

22. IS THERE MORE INFORMATION ABOUT THE LAWSUIT AVAILABLE?

More information about the lawsuit is available by visiting www.Entran3COclass.com, calling toll-free 1-800-000-0000, or writing to Entran 3 Co Class, c/o Angeion Group, PO Box 0000, Novato, CA 94949-0000. You can view a copy of the Court's Memorandum Opinion and Order, the Plaintiffs' Amended Class Action Complaint in the Class Action, and the Defendant's Answer to the Amended Class Action Complaint at the website.

TRANSMITTAL LETTER TO CONTRACTORS

Owners of homes, buildings or other structures with Entran 3 heating hose in Colorado have sued Goodyear Tire & Rubber Co. ("Defendant" or "Goodyear") for allegedly designing Entran 3 radiant heating hose with defects that will cause the hose to fail sooner than expected or in some instances have already caused the hose to fail.

Please send the notice to any customers and/or homeowners who you are aware of that own real property in the state of Colorado that contains Entran 3 heating hose. Entran 3 is a rubber hose, typically with an orange cover and the name "entran 3" or "entran 30394" stamped on it. A good place to look is where the hose connects to a manifold, connects to a boiler or enters the walls, ceiling or floor. A picture of Entran 3 hose can be viewed at www.Entran3COclass.com and below:

The judge in this case has determined that it will proceed in phases. In the first phase, a jury will decide if Goodyear is liable, or legally responsible, for designing defective Entran 3 hose. In the second phase, which will only occur if a jury finds that Goodyear is liable, Class members will each have the opportunity to show the court how you have been, or will be, damaged and seek compensation. There is no money available now and no guarantee there will be. However, the rights of the people included in the class action are affected and they have a choice to make now.

The notice below describes all of these rights and options, and the deadlines to exercise them. You may also obtain additional information at www.Entran3COclass.com.

Thank you.