GERALD E. ROSEN, Chief District Judge.
This is one of dozens of "junk fax" cases arising out of the use of the services of Business-to-Business Solutions ("B2B"), a company that worked with businesses to send advertisements via facsimile. Plaintiff's putative class action generally asserts that B2B faxed over ten thousand advertisements on Defendants' behalf in violation of the Telephone Consumer Protection Act, 47 U.S.C. § 227 ("TCPA"). This Court previously granted Defendant's Motion for Summary Judgment (Dkt. # 117) on the basis that Plaintiff lacked Article III standing to bring this suit and, in the alternative, that the TCPA does not provide for direct liability where a third party broadcasted the fax and that Plaintiff failed to meet its burden of production with regard to Defendants' indirect liability. Dkt. # 132. The Sixth Circuit reversed, holding that despite its lack of personal knowledge of the faxes at issue, Plaintiff has Article III standing to bring this case, and that the TCPA does provide for direct liability against a defendant whose goods or services are advertised in the fax at issue, even if that party did not broadcast the fax. As a result of the Sixth Circuit's opinion, Plaintiff's Motion to Certify Class, Dkt. # 109, which the Court previously dismissed as moot, is now ripe for adjudication.
Significant ink has been spilled describing the factual background of this case and related cases involving B2B. As the Court noted in its earlier summary judgment opinion, Judge Cox of this District has extensively outlined the genesis of these cases:
APB Associates, Inc. v. Bronco's Saloon, Inc., 297 F.R.D. 302, 304-06 (E.D. Mich. 2013) (Cox, J.) (internal quotation marks and citations omitted).
Much like other B2B litigation around the country, this case involves faxes sent by B2B on behalf of a company that was apparently unaware those faxes were potentially made in violation of the TCPA. As the Sixth Circuit in this matter succinctly explained,
Imhoff Inv., L.L.C. v. Alfoccino, Inc., 792 F.3d 627, 630 (6th Cir. 2015) (omission in original).
Former Plaintiff Imhoff Investment, L.L.C. originally filed its complaint in this matter in January 2010. Dkt. # 1. In July of that year, this Court dismissed the case for lack of subject matter jurisdiction over the TCPA claims. Dkt. # 19. After intervening circuit precedent held that federal courts have federal question jurisdiction over TCPA claims, the Sixth Circuit reversed and remanded on April 13, 2012. Dkt. # 24. In May 2012, Plaintiff Imhoff and Intervenor Avio filed a motion to intervene/substitute a new class representative, voluntarily dismiss Imhoff, and file an amended complaint, which the Court granted. Dkt. ## 26, 29. In September 2013, following discovery, Avio moved for class certification, seeking to establish a class of the more than 7,000 alleged unique recipients of B2B's fax of the Alfoccino's advertisement. Dkt. # 109.
While that motion was pending, Alfoccino moved for summary judgment, asserting that Avio lacked Article III standing to bring this suit and, in the alternative, that (1) the TCPA does not provide for direct liability where a third party broadcasted the fax and (2) Plaintiff failed to meet its burden of production with regard to Defendants' indirect liability. Dkt. # 117. The Court further denied Avio's motion for class certification as moot. Id. On appeal, the Sixth Circuit reversed and remanded, holding that holding that despite its lack of personal knowledge of the faxes at issue, Plaintiff has Article III standing to bring this case, and that the TCPA provides for direct liability against a defendant whose goods or services are advertised in the fax at issue, even if that party did not broadcast the fax. Dkt. # 137.
Plaintiff has moved this court to certify a class defined as:
Pl.'s Mot. for Class. Certification, Dkt. # 109, at 1. Plaintiff asserts that the proposed class meets the Rule 23(a) and 23(b)(3) requirements. See generally id. Defendant has opposed Plaintiff's motion in two separate briefings. First, in a direct opposition to Plaintiff's Motion for Class Certification — filed before the Sixth Circuit's reversal of this Court's granting of Defendant's Motion for Summary Judgment — Defendants contend (1) that Avio is not an adequate class representative and that its counsel is not adequate to serve as class counsel; and (2) the proposed class does not meet Rule 23(b)'s predominance and superiority requirements. See generally Def.'s Resp. to Pl.'s Mot. for Class Certification, Dkt. # 114.
Defendants have also filed a second brief, which the Court invited the parties to do following a status conference held after the Sixth Circuit's most recent opinion in this case. See Def.'s Br. in Support of Request for Class Discovery, Dkt. # 142. In that brief, Defendants assert that further discovery is needed to determine whether the proposed class is "ascertainable" because (1) the allegedly violative faxes occurred years in the past, potentially giving rise to difficulties in identifying class members, id. at 6-8, and (2) some recipients of the faxes may have had prior business relationships with Defendants and accordingly may have consented to receipt of the faxes at issue (which would provide a defense against Plaintiff's claims), id. at 9-12. In support of this final point, Defendants note that at his deposition, Defendant Shushtari (who was the contact person between Alfoccino and B2B) asserted that some of the individuals or entities who received the fax may have been past Alfoccino customers. Further, Defendants anecdotally note that they "visited 10 businesses who still had active offices" and received the faxes at issue here, and found that "employees from two of those businesses, as well as one additional business owner, acknowledged having dined at Alfoccino's restaurant in Auburn Hills." Id. at 9. Based on these arguments, Defendants assert that further discovery regarding the nature of the class is necessary.
Plaintiff seeks class certification under Fed. R. Civ. P. 23. In order to satisfy that rule, Plaintiff must establish as a threshold matter that: "(1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class." Fed. R. Civ. P. 23(a). These "four requirements — numerosity, commonality, typicality, and adequate representation — effectively limit the class claims to those fairly encompassed by the named plaintiff's claims." Wal-Mart Stores, Inc. v. Dukes, ___ U.S. ___, 131 S.Ct. 2541, 2550 (2011) (internal quotation marks omitted). "The trial court has broad discretion in deciding whether to certify a class, but that discretion must be exercised within the framework of Rule 23." In re Am. Med. Sys., Inc., 75 F.3d 1069, 1079 (6th Cir. 1996).
Once a plaintiff has satisfied each of the four prerequisites of Rule 23(a), it must then show that the proposed class action "qualif[ies] under at least one of the three categories set forth in subsection (b)" of the Rule. In re Nw. Airlines Corp. Antitrust Litig., 208 F.R.D. 174, 216 (E.D. Mich. 2002). In this case, Plaintiff relies solely on subsection (b)(3) of Rule 23, which requires a finding by the Court "that the questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy." Fed. R. Civ. P. 23(b)(3). "To meet the predominance requirement, a plaintiff must establish that issues subject to generalized proof and applicable to the class as a whole predominate over those issues that are subject to only individualized proof." Randleman v. Fidelity National Title Insurance Co., 646 F.3d 347, 352-53 (6th Cir. 2011). Yet, "the mere fact that questions peculiar to each individual member of the class action remain after the common questions of the defendant's liability have been resolved does not dictate the conclusion that a class action is impermissible." Sterling v. Velsicol Chem. Corp., 855 F.2d 1188, 1197 (6th Cir.1988).
In addition to these requirements spelled out directly in Rule 23, "[t]he existence of an ascertainable class of persons to be represented by the proposed class representative[s] is an implied prerequisite of Federal Rule of Civ[il] Procedure 23." In re OnStar Contract Litig., 278 F.R.D. 352, 373 (E.D. Mich. 2011) (first alteration in original) (emphasis added) (quoting John v. National Sec. Fire and Cas. Co., 501 F.3d 443, 445 (5th Cir. 2007)) (internal quotation marks omitted). In order to meet this requirement, the "class definition should be based on objective criteria so that class members may be identified without individualized fact finding." Id. Put differently, "the class definition must be sufficiently definite so that it is administratively feasible for the court to determine whether a particular individual is a member of the proposed class." Young v. Nationwide Mut. Ins. Co., 693 F.3d 532, 537-38 (6th Cir. 2012) (emphasis added) (quoting 7A Wright & Miller, Federal Practice and Procedure, § 1760 (3d ed.)) (internal quotation marks omitted). Class definitions that are "amorphous" or "imprecise" fail to meet this requirement. Id. at 538.
The Supreme Court has further recently emphasized that "Rule 23 does not set forth a mere pleading standard," and that "[a] party seeking class certification must affirmatively demonstrate his compliance with the Rule — that is, he must be prepared to prove that there are in fact sufficiently numerous parties, common questions of law or fact, etc." Dukes, 131 S. Ct. at 2551. A trial court must conduct a "rigorous analysis" to confirm that the requirements of Rule 23 have been met, and this inquiry may entail "prob[ing] behind the pleadings" and addressing "the merits of the plaintiff's underlying claim." Id. However, while the plaintiff must "show[] that questions common to the class predominate," it need not demonstrate "that those questions will be answered, on the merits, in favor of the class." Amgen Inc. v. Connecticut Retirement Plans & Trust Funds, ___ U.S. ___, 133 S.Ct. 1184, (2013).
The primary issue raised by Defendants following the Sixth Circuit's opinion in this case is the ascertainability of the class. Defendants raise two potential problems regarding ascertainability: (1) there are "significant issues with identifying class members based off of fax lists more than a decade old and faxes sent nearly a decade ago," and (2) "discovery is needed . . . to establish the extent to which putative class members had prior relationships with Alfoccino and/or consented to receive fax advertisements." Def.'s Br. in Support of Request for Class Discovery, at 7-8, 10. These potential problems are not unique to this case. Indeed, in support of both of their arguments, Defendants rely heavily on APB Associates, Inc. v. Bronco's Saloon, Inc., 297 F.R.D. 302, 305 (E.D. Mich. 2013), another case from this District involving junk faxes sent out through B2B. Just as in this case, the defendants in APB Associates asserted that certification of a class of persons who received the junk faxes was improper because the class was not ascertainable.
The court agreed, holding that the class was not ascertainable. As to the age of the plaintiff's lists of allegedly unlawful faxes, the court noted that "[t]hose lists . . . are based on the listings associated with telephone numbers that existed six to seven years ago. As a practical matter, that is problematic because the information is likely outdated and there would be no easy way of determining the current contact information for many of those entities connected to those phone numbers years ago, and many of the corporate entities may no longer exist." Id. at 320. And as to the possibility that some of the potential plaintiffs may have consented to receipt of the faxes, the court noted that "the claims of each class member are inherently individualized, inasmuch as an investigation would have to be conducted regarding the factual circumstances of each person who received a facsimile transmission from Defendants in order to determine liability," id. at 321 (quoting Frickco Inc. v. Novi BRS Enter., Inc., 2011 WL 2079704 (E.D. Mich. May 25, 2011)) (internal quotation marks omitted). The court further asserted that even if the plaintiff were to modify the proposed class to include only individuals who received unsolicited faxes, "so changing the class definition would not resolve this issue or change the fact that individualized challenges could still be made. Defendants cannot be foreclosed from pursuing this statutory defense as to those they believe they had an established business relationship with." Id. at 322. Last, in addition to these ascertainability problems, the court held, much like this Court originally held, that the proposed plaintiffs would lack Article III standing. Id. at 316.
Because of intervening circuit precedent, however, APB Associates is of limited value here. Just over a year after APB Associates, the Sixth Circuit resolved the question of whether an individual who did not own the fax machine that received a fax allegedly violating the TCPA possessed Article III standing to bring a TCPA claim, finding that standing is present in such a circumstance. Am. Copper & Brass, Inc. v. Lake City Indus. Products, Inc., 757 F.3d 540, 545 (6th Cir. 2014). Especially pertinent here is the fact that American Copper & Brass also involved the question of ascertainability, which was raised for the first time on appeal by the defendant:
Id. at 545 (citation omitted) (emphasis added). Though unquestionably dictum, the second quoted paragraph makes quite clear that the panel considered the class ascertainable based on the objective data contained in B2B's records — the very same records involved in APB Associates and this case. Based on American Copper & Brass, Judge Cox agreed to consider a motion to rehear the certification issues in APB Associates (that motion remains pending). APB Associates, No. 09-14959, Dkt. # 105 (E.D. Mich. March 16, 2015) (notice of hearing on motion to vacate). American Copper & Brass has similar implications for this case, as the Sixth Circuit opinion regarding standing in this case stated that "[t]he pertinent facts in American Copper are virtually identical to those of the instant case: Lake City's president paid B2B to transmit an advertisement on its behalf to thousands of recipients who had not been vetted by B2B and with whom it had no prior business relationship." Imhoff Inv., L.L.C. v. Alfoccino, Inc., 792 F.3d 627, 631 (6th Cir. 2015).
Other caselaw and analysis of the facts at issue here both weigh in favor of the conclusion that the class meets the ascertainability requirement. First, regarding the contention that the age of the Biggerstaff fax log makes the potential class not ascertainable, Rule 23 does not require that all members of the class be instantly determinable without any individual examination. Instead, it must merely be "administratively feasible for the court to determine whether a particular individual is a member of the proposed class." Young, 693 F.3d at 537-38 (emphasis added). Such determination is feasible here; Plaintiff possesses a list of numbers to which the fax was sent, and it is certainly feasible to determine which individuals and businesses received the faxes at those numbers. As the Sixth Circuit stated in American Copper & Brass; there are objective criteria referencing the class members: "the fax numbers are objective data."
Second, Defendants' contention that some of the faxes may have been consented because the recipients may have occasionally dined at Defendants' place of business appears, to this Court, to make a mountain out of a molehill. The proposed class could contain as many 7,625 members, since the allegedly violative faxes were sent to that number of unique fax numbers. That Defendant has anecdotally identified a handful of instances of conduct that tie individuals associated with some of the fax numbers to Defendants' business is not enough to warrant delaying certification of the class. The TCPA provides an exception for consented faxes where (1) "the unsolicited advertisement is from a sender with an established business relationship with the recipient," (2) the fax number was obtained "through the voluntary communication of such number, within the context of such established business relationship, from the recipient of the unsolicited advertisement, or . . . a directory, advertisement, or site on the Internet to which the recipient voluntarily agreed to make available its facsimile number for public distribution," and (3) the unsolicited advertisement meets various notice requirements. 47 U.S.C. § 227(b)(1)(C) (emphasis added). Even presuming that the alleged contact between a few potential plaintiffs from the Biggerstaff fax log and Defendants' restaurant constituted an "established business relationship,"
Based on reasoning similar to the above, many courts have certified classes virtually identical to this one in cases involving the very B2B debacle at issue in this case. See, e.g., Palm Beach Golf Center-Boca, Inc. v. Sarris, No. 12-80178 (S.D. Fla. Aug. 5, 2015), Physicians Healthsource, Inc. v. Doctor Diabetic Supply, LLC, No. 12-22330-CIV, 2014 WL 7366255 (S.D. Fla. Dec. 24, 2014); Hawk Valley, Inc. v. Taylor, 301 F.R.D. 169 (E.D. Pa. 2014); Chapman, 2014 WL 540250; C-Mart, Inc. v. Metro. Life Ins. Co., 299 F.R.D. 679 (S.D. Fla. 2014). Like those courts, this Court does not find any potential ascertainability problems to be fatal to certification or to warrant extended pre-certification discovery.
Defendants do not appear to dispute that the class meets the Rule 23(a)(1) numerosity requirement. Indeed, as the Sixth Circuit has made clear, "sheer number of potential litigants in a class, especially if it is more than several hundred, can be the only factor needed to satisfy Rule 23(a)(1)." Bacon v. Honda of Am. Mfg., Inc., 370 F.3d 565, 570 (6th Cir. 2004). Like other courts addressing litigation arising from B2B's faxes, the Court finds the numerosity requirement is satisfied.
Likewise, Defendants appear to accept that the class satisfies Rule 23(a)(2)'s commonality requirement. In order to meet the threshold, "there need only be one question common to the class." Sprague v. General Motors Corp., 133 F.3d 388, 397 (6th Cir.1998). "Complete identity of issues is not required; rather, it is enough if the resolution of one particular issue will affect all or a significant number of the members of the putative class." In re Nw. Airlines Corp., 208 F.R.D. 174, 217 (E.D. Mich. 2002). "For example, where the party opposing the class has engaged in some course of conduct that affects a group of persons and gives rise to a cause of action, one or more of the elements of that cause of action will be common to all of the persons affected." Id. (internal quotation marks, alteration, and citation omitted). There are numerous common questions here. As Plaintiff explains, "[t]he case involves common fact questions about Defendants' fax campaign and common legal questions under the TCPA, such as: whether Defendants' faxes were `advertisements'; whether Defendants violated the TCPA by faxing their advertisements without first obtaining express invitation or permission to do so; whether Plaintiff and the other class members are entitled to statutory damages; and whether Defendants' acts were `willful' or `knowing' under the TCPA and, if so, whether the Court should treble the statutory damages." Pl.'s Mot. for Class Certification, Dkt. # 109, at 18. The commonality requirement is satisfied.
The typicality element of Rule 23(a) is intended to "limit the class claims to those fairly encompassed by the named plaintiff's claims." General Telephone Co. v. EEOC, 446 U.S. 318, 330 (1980). A named plaintiff's claim "is typical if it arises from the same event or practice or course of conduct that gives rise to the claims of other class members, and if his or her claims are based on the same legal theory." Beattie v. CenturyTel, Inc., 511 F.3d 554, 561 (6th Cir. 2007) (internal quotation marks and citation omitted). "The premise of the typicality requirement is simply stated: as goes the claim of the named plaintiff, so go the claims of the class." Sprague, 133 F.3d at 399. As this Court has previously explained, the "`commonality' and `typicality' inquiries overlap to a degree," but "commonality focuses on similarities, while typicality focuses on differences." Northwest Airlines, 208 F.R.D. at 218 (internal quotation marks and citation omitted). Here, the differences between the potential class members are few. Each class member received the same fax, and each potential member's claim is based on the same legal theory as Plaintiff's. The Court finds that the typicality requirement is satisfied.
The fourth and final requirement of Rule 23(a) is that "the representative parties will fairly and adequately protect the interest of the class." Fed. R. Civ. P. 23(a)(4). "To satisfy this requirement Plaintiffs must show that: (1) the representatives' interests do not conflict with the class members' interests, and (2) the representatives and their attorneys are able to prosecute the action vigorously." In re Cardizem CD Antitrust Litig., 200 F.R.D. 326, 336 (E.D. Mich. 2001). "The adequacy of representation requirement is designed to protect class members who are not named as parties to the action but nevertheless who will be bound by a subsequent judgment." In re Foundry Resins Antitrust Litig., 242 F.R.D. 393, 406 (S.D. Ohio 2007). In the original briefing regard class certification in this matter, Defendants argued that Avio is not an adequate class representative because it "has no personal knowledge of receiving the fax" at issue. Def.'s Resp. to Pl.'s Mot. for Class Certification, Dkt. # 114, at 7. But the Sixth Circuit's most recent opinion in this matter made clear that viewing or printing the fax itself is immaterial to the TCPA claim. Imhoff, 792 F.3d at 633. Further, many other potential members of the class will undoubtedly stand in the same position as Plaintiff: having no knowledge that the allegedly violative fax was sent to them until being contacted by Plaintiff's counsel about it. Plaintiff and the other class members all seek the same statutory damages under the TCPA and those claims will be litigated in the same manner. Their interests are aligned, and accordingly the Court finds that Plaintiff is an adequate representative of the class.
Rule 23 contains a further adequacy requirement in Rule 23(g)'s class counsel provisions. That Rule mandates that the "court that certifies a class must appoint class counsel." Fed. R. Civ. P. 23(g). In appointing such counsel, the court must consider the following four factors:
Id. On these factors, the Court agrees with other courts in this Circuit that have found the very counsel here — Anderson & Wanca, with Brian J. Wanca serving as lead counsel; and Sommers Schwartz, with Jason Thompson representing Plaintiff — to be adequate representation in matters involving the B2B faxing matters. As Judge Tarnow articulated in one such case:
Exclusively Cats Veterinary Hosp. v. Anesthetic Vaporizer Servs., Inc., No. CIV.A. 10-10620, 2010 WL 5439737, at *5 (E.D. Mich. Dec. 27, 2010) (citation omitted); see also Jackson's Five Star Catering, Inc. v. Beason, No. 10-10010, Dkt. # 23 (E.D. Mich. April 20, 2011) (order granting motion to certify class); Imhoff Investment, LLC v. Sammichaels, Inc., No. 10-10996, Dkt. # 54, 2012 WL 2036765, (E.D. Mich. May 21, 2012) (order denying motion to strike). Accordingly, the court finds that Rule 23's adequacy requirements are satisfied by the proposed class here.
Because Plaintiff proposes a class under Rule 23(b)(3), it must demonstrate "that the questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy." Fed. R. Civ. P. 23(b)(3). Defendants assert that the proposed class fails to meet either the predominance or the superiority requirements.
With regard to predominance, Defendants make essentially the same consent argument that they do in challenging the ascertainability of the class. Because it is possible that individual recipients of the allegedly violative faxes may have consented to those faxes, defendants argue, the potential liability of each fax is subject to an individualized question. See Def.'s Resp. to Pl.'s Mot. for Class Certification, at 19-20.
The Rule 23(b)(3) predominance inquiry can be thought of as a second step to Rule 23(a)'s commonality inquiry. As the Sixth Circuit has explained, "[t]he commonality requirement is satisfied if there is a single factual or legal question common to the entire class. The predominance requirement is met if this common question is at the heart of the litigation." Powers v. Hamilton Cnty. Pub. Defender Comm'n, 501 F.3d 592, 619 (6th Cir. 2007) (citation omitted). As discussed above regarding the ascertainability and Rule 23(a) analyses, the Court finds that common issues predominate. The heart of this litigation arises from a single campaign of faxes sent by a single set of Defendants. Each allegedly violative fax was identical in its substance. And critically, all of the potential class members' claims are brought under the same federal statute and are based on identical legal theories that can be uniformly resolved together. See Palm Beach, No. 12-80178, at 18 (S.D. Fla. Aug. 5, 2015); Exclusively Cats, No. CIV.A. 10-10620, 2010 WL 5439737, at *5 (E.D. Mich. Dec. 27, 2010). While it is undoubtedly true that some individualized issues may arise involving consent, there is no indication that those issues are so widespread so as to overcome the numerous and foundational issues common to all members of the class.
With regard to superiority, Defendants' argument is no different. They maintain that "because of the level of individualized inquiry[,] a class action is not more efficient." Def.'s Resp. to Pl.'s Mot. for Class Certification, at 25. For the reasons explained above, the Court does not find the individualized inquiries to be so burdensome that they overcome the benefit of litigating these claims through the class action device. As other courts have explained, "[g]iven the large number of purported members in this suit and the similarity of their claims, disposition by class action is an efficient use of judicial resources." Palm Beach, No. 12-80178, at 19 (S.D. Fla. Aug. 5, 2015). Defendants would have all of the thousands of potential litigants here bring their claims separately; the Court does not find this to be an efficient solution. See Chapman, 2014 WL 540250, at *16 ("There are up to 10,145 plaintiffs in this suit with the same claim under the same federal statute. With that large number in mind, it is impossible to imagine individual lawsuits; disposition by class action is certainly, in this case, an efficient use of judicial resources."). Further, the TCPA provides an example of a so-called "negative value suit," where the time, expense, and effort of bringing a claim of a single violation of the statute will not be worth the payoff to many litigants, ultimately chilling enforcement of the law if class actions cannot be brought. See id.; Am. Copper & Brass, Inc. v. Lake City Indus. Products, Inc., No. 1:09-CV-1162, 2012 WL 3027953, at *4 (W.D. Mich. July 24, 2012) aff'd, 757 F.3d 540 (6th Cir. 2014) ("This type of case weighs in favor of the class action as a superior device. Under the TCPA, the maximum recovery for each class member is $1500. . . . Hence, individual class members are unlikely to litigate TCPA claims."). In such cases, the class action device provides value in allowing potential plaintiffs to share the burden of litigating the claims. For these reasons, the Court finds that the superiority requirement of Rule 23(b)(3) is satisfied.
For all of the foregoing reasons,
IT IS HEREBY ORDERED that Plaintiff's Motion to Certify Class (Dkt. # 109) is
IT IS FURTHER ORDERED that, pursuant to Fed. R. Civ. P. 23(g), Plaintiff's counsel — Brian J. Wanca of Anderson & Wanca and Jason J. Thompson of Sommers Schwartz, P.C. — are appointed as class counsel.
IT IS FURTHER ORDERED that Plaintiff's counsel file a proposed class notification form which complies with Fed. R. Civ. P. 23(c), together with a statement describing the method by which the notice will be provided to class members and a list of persons to whom the notice will be sent.
