The opinion of the court was delivered by: Hon. Hugh B. Scott
Before the Court is defendants' objections to plaintiffs' proposed method of notice for the Rule 23(e) fairness hearing of their proposed settlement (Docket No. 52 (New York State defendants), No. 55 (County defendant)*fn1 ). After referring the fairness hearing to Magistrate Judge McCarthy (Docket No. 50), this Court set an accelerated briefing schedule on these issues, with the County defendant to file his position by November 7, 2007; plaintiffs to respond by November 9, 2007; any reply due by November 16, 2007; with this issue to be submitted by November 16, 2007 (Docket No. 53).
This civil rights class action challenged the practices of Erie County Department of Social Services in the handling of Medicaid, food stamps, and public assistance applications in the wake of the Erie County budget crisis. Plaintiffs are a class of Erie County residents who applied for public assistance (or may have applied for assistance) after June 1, 2005 (see Docket Nos. 30, Am. Compl., 49, Order certifying class). They alleged their class was a Rule 23(b)(2) class (Docket No. 30, Am. Compl. ¶ 7). Defendants are Erie County Commissioner of Social Services Michael Weiner (hereinafter "the County defendant"), New York State Commissioner of State Office of Temporary and Disability Assistance Robert Doar, and New York State Commissioner of Department of Health Antonia Novello (collectively the "State defendants").
The parties consented to proceed before the undersigned as Magistrate Judge on September 4, 2007 (Docket No. 44). The parties' stipulation settling this case was so ordered by the Court on October 29, 2007 (Docket No. 48), and the Court also certified this class (Docket No. 49), and consideration of the fairness of the settlement terms are now pending before the Court.
The Court conducted a status conference on October 2, 2007 (Docket No. 46). At that conference, plaintiffs submitted their proposed class notices and Orders (see Docket Nos. 56, 57 (Court filed cover letter and proposed notices)). Defendants voiced their objections to two aspects of the notice. Plaintiffs wanted the notice of the fairness hearing to be posted on the websites for the Erie County Department of Social Services, and the New York State Office of Temporary and Disability Assistance and State Department of Health. Defendants objected to having notice placed on those websites. Second, defendants argued that they should not bear the total costs for notice to potential class members. Other aspects of the proposed notice (such as posting notice in Erie County Department of Social Services' offices and other social services sites, and publication in the Buffalo News and The Challenger, plaintiffs' counsel distribution of the notices to advocacy groups, and on the counsel's websites, and the text of the notice in general) were agreeable to defendants. On October 12, 2007, plaintiffs submitted to Chambers their proposed Orders, including proposed Rule 23(e) notice Order and proposed notice to class members, and a cover letter arguing their position (Docket Nos. 57, 56; see Docket No. 51 (filed version of cover letter)). Initially, plaintiffs contend that defendants' websites are their "electronic 'waiting rooms' for persons seeking information about public assistance," and thus are suitable places for publishing notice about this action (Docket No. 57, Pls. Atty. Letter, Oct. 12, 2007, at 1). Plaintiffs included copies from defendants' website pages where the notices are proposed to go (Docket No. 56).
The State defendants argue that there is no basis for ordering defendants to post this notice on their websites and object to paying the costs for notice, citing Eisen v. Carlisle & Jacqueline, 417 U.S. 156 (1974), that costs either should be borne by plaintiffs or distributed among all parties (Docket No. 52, State Defs. Atty. Decl. ¶¶ 4, 5). The County defendant joins in the co-defendants' arguments (see Docket No. 55, County Def. Atty. Decl.). Defendants do not argue the hardship or expense in publishing this notice on their respective websites. The State defendants argued, on October 2, 2007, that (as statewide agencies) notice for a settlement affecting one region of the state would not be appropriate for their websites and those sites were not proper fora for legal notices.
Plaintiffs responded during the October 2 conference that Eisen is not applicable here since that case was for notice of a pending class action under Rule 23(c)(2) and not for notice of settlement of a class action under Rule 23(e). As for which party should bear the cost of the notice, plaintiffs contend that the plaintiff class members are indigent and cannot afford the notice costs, see Duncan v. Goodyear Tire & Rubber Co., 66 F.R.D. 615 (E.D. Wis. 1975) (defendant bore notice cost to notify class of employees); Kansas Hosp. Ass'n v. Whiteman, 167 F.R.D. 144 (D. Kan. 1996) (defendant ordered to bear costs for notice to class of Medicaid recipients) (see Docket No. 59, Pls. Atty. Decl. ¶ 7). They argue that recovery of notice costs is not a question of whether but of when, since they claim entitlement to reimbursement of such costs as prevailing parties under 42 U.S.C. § 1988, so defendants would pay (or repay) for these expenses in any event (see id. ¶ 9). Plaintiffs respond that Eisen is distinguishable from this case, since the notice in that case was for Rule 23(c)(2) as opposed to the notice here of settlement of a class action and the fairness hearing. They also distinguish Eisen by comparing the class members involved, with the pending case consisting of indigent social services applicants and the Eisen class shareholders. (See id. ¶ 8.) They note that Eisen itself distinguished that class from one seeking (as here) declaratory or injunctive relief (id.), see Eisen, supra, 417 U.S. at 177 n.14 (Rule 23(c)(2) not applicable to declaratory judgment or injunctive relief class actions). They repeat their argument that defendants' websites are "electronic waiting rooms," and that notice there affords adequate contact to class members with disabilities (id. ¶¶ 5, 6).
I. Fairness Hearing Notice on Defendants' Websites
Federal Rule of Civil Procedure 23(e)(1)(B) requires the Court to direct notice "in a reasonable manner to all class members who would be bound by a proposed settlement." Under Rule 23(c)(2)(A), there is a similar notice requirement once the Court determines to certify the class. The Court has complete discretion as to how this notice is to be given, 7B Charles A. Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 1797.6, at 200 (Civil 3d ed. 2005). Aside from individual mailed notice to known class members, see id., the more common forms of notice (being utilized here) involve posting notice in prominent places where class members are apt to see it, see Shuford v. Alabama State Bd. of Educ., 897 F. Supp. 1535, 1547-48 (M.D. Ala. 1999), and publication in general circulation newspapers. Commentators have noted that other methods of notice exist, including television, radio, print publications, and the Internet, 7B Federal Practice and Procedure, supra, § 1797.6 at 202; see also Thompson v. Met Life, 216 F.R.D. 55, 68 (S.D.N.Y. 2003) (holding that notice to class, including banner ad linked to website, met Rule 23(c)(2) and (e)); In re Visa Check/Mastermoney Antitrust Litig., No. CV-96-5238, 2002 U.S. Dist. LEXIS 23327, at *16 (E.D.N.Y. June 21, 2002) (order for publishing summary notice to "PR Newswire" which includes website and Internet portals).
The issue here is whether one aspect of that notice, posting of the notice on the defendants' website pages, is a reasonable manner for notice. Plaintiffs note that a segment of the class, those with disabilities (see Docket No. 59, Pls. Atty. Decl. ¶ 6), can access the notice online on defendants' websites where they may not have been able to go to defendants' physical offices. This use of the Internet for notice to class members is novel and, with the State defendants' websites, may be over inclusive in notifying the entire state for a regionally based class. But this is the same effect of posting a notice in a general circulation newspaper where a number of readers would not be interested class members. The State defendants do not suggest an alternative method from their websites to reach class members, particularly those with disabilities that may prevent access to other places where the parties agree notice will be posted. The County defendant generally states that the website notice will not provide adequate notice (Docket No. 55, County Def. Decl. ¶ 4) without specifying the deficiencies in that notice. The web-based notice merely would provide either a link to the printed notice text (that the parties agreed to) or reproduces that text on the website ...