United States District Court

For the Northern District of California

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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

JOHN C. ETTER, individually and on

behalf of all others similarly situated,

Plaintiff,

 v.

ALLSTATE INSURANCE COMPANY, 

et al.,

Defendants. /

No. C 17-00184 WHA

ORDER ON OBJECTION RE

DISTRIBUTION OF NOTICE

A prior order dated February 12 suggested that the parties’ joint proposed notice of

pending class action “should be distributed by both U.S. First Class mail and facsimile

transmission, the latter to each of the facsimile numbers to which — according to either side —

the facsimile advertisement in question was transmitted in October 2016” (Dkt. No. 82). In

response, defendants reiterate their position that it is “impossible to identify the numbers to

which [the] October 2016 facsimile was transmitted . . . and Plaintiff’s expert’s proposed method

to identify the recipients . . . is flawed” (Dkt. No. 88 at 1) — an argument previously rejected at

the class certification stage (see Dkt. No. 73). Despite offering no proposal of their own,

defendants also object to plaintiff’s proposal to distribute notice to a list compiled from Odiase

2212, the source list for the October 2016 facsimile, modified to correct a purported error in

alignment between addresses and fax numbers on the spreadsheet (Dkt. No. 88 at 2).

Case 3:17-cv-00184-WHA Document 104 Filed 02/23/18 Page 1 of 2
United States District Court

For the Northern District of California

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Defendants’ argument seems to be that Odiase 2212 must be used in its raw form to

distribute notice because “the names and addresses listed on Odiase 2212 were the basis for the

court’s certification order” (see ibid.). This overstates the class certification order, which merely

noted that “a reliable method of identifying individual class members even in the absence of

detailed fax logs” remained possible. By way of example, the order described how plaintiff

deduced a list of unique fax numbers supposedly representing successful transmissions of the

October 2016 fax by comparing Odiase 2212 to the exception report for that fax (see Dkt. No. 73

at 10). This reasoning in no way hinged on plaintiff using Odiase 2212 only in its raw form to

define the class. If anything, it indicated the opposite — that plaintiff could use Odiase 2212, in

combination with other sources of information, to deduce the fax numbers of class members. 

Insofar as defendants suggest the class should be defined by Odiase 2212, they could have made

this argument at the class certification stage but failed to do so. It will not be considered now.

Nor do defendants actually challenge plaintiff’s theory that Odiase 2212 requires some

analysis — for example, removing duplicate entries and entries that overlap with the exception

report — to accurately reflect the universe of recipients that plaintiff contends received the

October 2016 fax. Instead, defendants simply argue that they have “not had an opportunity to

confirm the existence of any error in ‘alignment’ and [do] not know if the ‘re-aligned’ addresses

and fax numbers are correct” (Dkt. No. 88 at 2). As plaintiff points out, however, it should be

easy for defendants to analyze the proposed “realignment” themselves (Dkt. No. 95 at 3) and

either offer substantive reasons why plaintiff’s proposed list would not accurately reflect the

represented class or stop objecting for the sake of objecting.

Defendants’ objection is OVERRULED. Since they remain agnostic regarding recipients

of the October 2016 facsimile, plaintiff’s proposed list will be used to distribute notice.

IT IS SO ORDERED.

Dated: February 23, 2018. WILLIAM ALSUP

UNITED STATES DISTRICT JUDGE

Case 3:17-cv-00184-WHA Document 104 Filed 02/23/18 Page 2 of 2