ORDER
CAROL MIRANDO, Magistrate Judge.
This matter comes before the Court upon review of the Motion for Approval of the Parties' Class Notice and Plan for Dissemination of the Class Notice filed on December 21, 2018. Doc. 51. Plaintiff seeks an order approving the proposed class notice to be disseminated to class members. Id. The parties agree on the form and substance of all but one sentence in the proposed class notice. See id. at 2.
The parties dispute whether the following sentence should be included: "Plaintiff is seeking a Class Recovery of up to $48,264.00, which would entitle each Class Member to approximately $13.96." Id. (quoting Doc. 51-1 at 2); compare Doc. 51-1 at 2, with Doc. 51-2 at 2. None of the cases cited by Plaintiff demonstrate an approximation of potential recovery is necessary or appropriate for class members to make an intelligent decision about whether to remain in a class action. See Doc. 51 at 2-3 (citing Klewinowski v. MFP, Inc., No. 8:13-cv-1204-T-33TBM, 2013 WL 12157853, at *2 (M.D. Fla. Dec. 5, 2013); In re CP Ships, Ltd., Sec. Litig., No. 8:05-MD-1656-T-27TBM, 2008 WL 4663363, at *2 (M.D. Fla. Oct. 21, 2008)). The Court finds all the other information in the notice—without the approximation of potential recovery—provides sufficient information for class members to make an intelligent decision about whether to stay in the class. Additionally, the Court has adjusted the proposed deadlines to ensure prompt notice in light of the upcoming deadlines in the Case Management and Scheduling Order. See Doc. 29.
ACCORDINGLY, it is
ORDERED:
1. The Motion for Approval of the Parties' Class Notice and Plan for Dissemination of the Class Notice (Doc. 51) is GRANTED in part and DENIED in part.
2. The Court approves the form and substance of the class notice attached as Exhibit B to the Motion (Doc. 51-2). The approved class notice also is attached to this Order.
3. The class administrator shall mail the notice to the class members by First Class mail on or before February 8, 2019.
4. Any Class Member who wishes to be excluded from the class must send a written request for exclusion to the Class Administrator with a postmark date on or before March 15, 2019.
5. Any Class Member who wishes to be represented by his or her own attorney must have an attorney file a notice of appearance on or before March 15, 2019.
DONE and ORDERED.
IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF FLORIDA FORT MYERS DIVISION
OMAR ENCARNACION, individually
and on behalf of all others similarly Civil Case Number: 2:17-cv-00566-SPC-CM
situated,
Plaintiffs,
-against-
FINANCIAL CORPORATION OF
AMERICA,
Defendant.
NOTICE REGARDING RIGHT TO BENEFIT FROM CLASS ACTION
THIS IS NOT A LAWSUIT AGAINST YOU.
A COURT AUTHORIZED THIS NOTICE THIS IS NOT A SOLICITATION FROM A LAWYER.
A class action lawsuit was filed against Financial Corporation of America (referred to herein as "FCA") related to debt collection letters used by FCA. The District Court has certified a class action comprised of certain individuals. You may be a member of the Class Action and entitled to payment as a result.
The Court has not decided whether FCA did anything wrong. There is no money available now, nor is there any guarantee that there will be. A Class Recovery Fund has not yet been established. The Court will decide what total damages, if any, to award the class, which funds will be used to pay valid claims. You may be entitled to a portion of the Class Recovery funds. The final cash payment for class members will depend on the total number Class Members who elect to stay within the Class, and the ultimate size of the Class Recovery Fund, still to be decided by the Court. Your legal rights are affected whether you act or don't act. Read this notice carefully.
YOUR OPTIONS
Option 1: By doing nothing, you will remain in the Class and be bound by the terms
Do Nothing and Stay in of the result in the Class Action but you will receive a share of the Class
the Class Action Recovery funds, if any such funds are awarded by the Court.
Option 2: Get out of this lawsuit and get no benefits from it
Ask to be Excluded You may ask to be excluded from the lawsuit. By excluding yourself, you
cannot recover as part of this Class Action and you keep a right to sue on
your own.
1. What is this lawsuit about?
In the lawsuit, the Plaintiff claims that Financial Corporation of America ("FCA") violated the federal Fair Debt Collection Practices Act ("FDCPA") by sending initial collection letters to consumers, which failed to adequately identify the creditor to whom the debt was currently owed. FCA denies that its initial collection violates the FDCPA as alleged by Plaintiff.
2. Why is this a class action?
In this action, a person called the Class Representative (in this case, Omar Encarnacion), sued on behalf of a group (or a "Class") of people who have substantially similar claims regarding the collection letters sent by FCA in an attempt to collect a debt.
3. How do I know if I am a part of the Class Action?
The Court has certified a Class consisting of all people who meet the following definition:
All consumers in the State of Florida who were sent a L2N Collection Letter from the Defendant, during the time period of October 16, 2016 to the present, attempting to collect an obligation owed to or allegedly owed to Lehigh Regional Medical Center.
FCA estimates that, based on its electronic records, there are approximately 3,456 people in the Class. According to FCA's records, you are a Class member.
YOUR BENEFITS UNDER THE CLASS ACTION
4. What can I get from this Class Action?
No money or benefits are available now because the Court has not yet decided whether FCA did anything wrong, and the two sides have not settled the case. There is no guarantee that money or benefits ever will be obtained. If they are, and if you have not excluded yourself, you will be notified about how to ask for a share.
Each Class Member who does not opt-out or exclude himself or herself from the settlement may receive a check for their pro rata (an equal) share of the Class Recovery funds. The amount of your Settlement Check will be determined by dividing the Class Fund by the number of Class Members participating in Class Recovery funds. FCA objects to the Class Recovery sought by Plaintiff, and the ultimate amount of the Class Recovery, if any, shall be determined by the Court.
5. When will I receive these benefits?
You will receive these benefits approximately 60 days after the Court enters a Final Order, awarding the class any monetary Class Recovery. This estimation is premised on the assumption that no appeals are filed.
6. What am I giving up to receive these benefits?
By staying in the Class Action, all of the Court's orders will apply to you, and you will be bound by the result in the Class Action. This means that you will only be entitled to receive whatever the Court decides to award the class, if anything is ultimately awarded by the Court. You will give up the right to sue or be part of any other lawsuit against Defendant about the claims or issues in this lawsuit with respect to the collection letters at issue in the Complaint. You may be entitled to a greater monetary recovery if you exclude yourself from the Class Action and bring a separate individual lawsuit against the Defendant FCA.
7. How much will the Class Representative receive?
The Plaintiff is seeking payment for his individual statutory damages, up to $1,000.00, under the FDCPA, and his pro rata share of the class recovery. Plaintiff will also be seeking an incentive award from the Court. Plaintiff's individual statutory damage and incentive award will be paid separately from the Class Recovery, and will not diminish any Class Members recovery. FCA contests Plaintiff's entitlement to an incentive award.
These payments are subject to the Court's Approval and Award of such monetary amounts.
EXCLUDING YOURSELF FROM THE CLASS ACTION
You may be entitled to more money by opting out of the class and bringing your own individual claim. If you do not want to remain in the Class Action, but you want to keep your legal claims against FCA, then you must take steps to exclude yourself from this Class Action.
8. How do I get out of the class action?
To exclude yourself from the class action, you must send a letter by mail stating that you want to be excluded from Omar Encarnacion v. Financial Corporation of America, USDC Middle District of Florida, Case No. 2:17-cv-00566-SPC-CM. Be sure to include your name, address, telephone number, and your signature. You must mail your exclusion request so that it is postmarked no later than [Plaintiff proposes 120 days from approval of this Class Notice], to:
KCC, LLC
Class Action Administration
1290 Avenue of the Americas
9th Floor
New York, NY 10104
9. If I exclude myself, do I still receive benefits from this lawsuit?
No, you will not receive anything resulting from this lawsuit, but you will have the right to sue FCA over the claims raised in this case.
The Lawyers Representing You
The Court has appointed Yitzchak Zelman, Esq. and the firm Marcus & Zelman, LLC to serve as Class Counsel. If you want to be represented by your own lawyer, you may hire one at your own expense. If you choose to hire your own lawyer, he or she must file an appearance by [Plaintiff proposes 120 days from approval of this Class Notice].
How will Lawyers Be Paid
Plaintiff's lawyers will be seeking reasonable attorneys' fees, costs and expenses from the Court. Any award for attorneys' fees, costs, and expenses will be in addition to, and shall in no manner reduce the amount of the benefits due to the class. The attorneys' fees and costs will be paid by FCA and will not be taken out of the Class Recovery fund.
FOR MORE INFORMATION
If you have any questions or seek more information, contact Class Counsel at:
Yitzchak Zelman, Esq.
Marcus & Zelman, LLC
701 Cookman Avenue, Suite 300
Asbury Park, NJ 07712
Phone: (732) 695-3282
Fax: (732) 298-6256
Email:yzelman@marcuszelman.com
CORRECT ADDRESS
If this Notice was forwarded to you by the Postal Service, or if it was otherwise sent to you at an address that is not current, you should send a letter immediately to the Settlement Administrator:
KCC, LLC
Class Action Administration
1290 Avenue of the Americas
9th Floor
New York, NY 10104
DO NOT ADDRESS ANY QUESTIONS ABOUT THE LITIGATION TO THE CLERK OF THE COURT OR TO THE JUDGE
They are not permitted to answer your questions.
