Preview
Filing # 170354061 E-Filed 04/04/2023 10:40:43 PM
IN THE CIRCUIT COURT OF THE
ELEVENTH JUDICIAL CIRCUIT IN AND
FOR MIAMI-DADE COUNTY, FLORIDA
GENERAL JURISDICTION DIVISION
CASE NO. 2017-22854 CA (21)
HEYDI VELEZ, et al.,
Plaintiffs,
vs.
FLORIDA POWER & LIGHT COMPANY,
Defendant.
________________________________________/
DEFENDANT, FLORIDA POWER & LIGHT COMPANY’S,
OPPOSITION TO PLAINTIFF’S MOTION FOR APPROVAL OF
NOTICE PROGRAM AND DIRECTING NOTICE OF
PENDENCY OF CLASS ACTION TO THE CLASS [D.E. 295]
Pursuant to FLORIDA RULE OF CIVIL PROCEDURE 1.220(d)(2), Defendant, FLORIDA
POWER & LIGHT COMPANY (“FPL”), (i) opposes Plaintiffs’ Motion for Approval of Notice
Program and Directing Notice of Pendency of Class Action to the Class, filed April 3, 2023 [D.E.
295] (“Notice Program Motion”) and (ii) respectfully requests this Court instead authorize and
approve FPL’s proposed written notice, a copy of which is attached hereto as Exhibit “1” (“FPL’s
Proposed Notice”).
INTRODUCTION
Now that a class action has been certified and the class definition has been affirmed,
Plaintiffs are obligated to notify the class members of the existence of the class and of the
deadlines, obligations, responsibilities, and risks associated with their membership in the class.
The law requires that this information must be transmitted to each class member in writing,
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Defendant’s Opposition to Plaintiff’s Motion for Approval of Notice Program
Case No.: 17-22854 CA (21)
“clearly and concisely” and “in plain, easily understood language.” Plaintiffs’ proposed notice fails
to accomplish this. FPL, alternatively, has provided a proposed notice that does accomplish that.
Accordingly, this Court should adopt FPL’s proposed notice.
Moreover, Plaintiffs have suggested that the business (i.e., MSP Recovery, LLC d/b/a
LifeWallet (“MSP LifeWallet”)), which is owned and operated by one of Plaintiffs’ attorneys
(i.e., MSP Recovery, LLC and/or MSP Recovery, Inc.) which in turn is operated by one of their
attorneys (i.e., John Ruiz, Esq. of MSP Recovery Law Firm) could serve as the claims
administrator here. FPL objects to that suggestion given MSP LifeWallet’s lack of independence
combined with its lack of experience serving as a class action claims administrator.
RELEVANT PROCEDURAL BACKGROUND
1. On December 31, 2021, this Court entered a class certification order [D.E. 224],
which certified the following class:
All persons and business owners who reside and are otherwise citizens of the state
of Florida that entered into contractual agreement with FPL for electrical services,
were charged a storm charge, experienced a power outage after Hurricane Irma, and
suffered consequential damages, directly and proximately, because of FPL’s breach
of contract and/or gross negligence.
2. On March 22, 2023, the Third District Court of Appeal affirmed the class
certification order (“Appellate Opinion”). [D.E. 281]
3. On March 31, 2023, FPL moved for rehearing and rehearing en banc directed to
the Appellate Opinion. That appellate motion is still pending in the Third District.
4. In the meantime, a jury trial is currently scheduled for November 2023, just eight
months away.
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Defendant’s Opposition to Plaintiff’s Motion for Approval of Notice Program
Case No.: 17-22854 CA (21)
5. Because of the stay that was imposed, not a single class member who is not a named
Plaintiff has been alerted to his or her rights and obligations in this class action.
6. On April 3, 2023, Plaintiffs filed the Notice Program Motion. [D.E. 295]
7. Plaintiffs’ proposed written notice to the class (“Plaintiffs’ Proposed Notice”) is
attached as Exhibit B to the Notice Program Motion Id.
ARGUMENT
A. The Legal Requirements for Class Notice.
8. Now that a class has been certified, the Named Plaintiffs are legally obligated to
provide notice to the class.
9. The applicable rule of procedure describes what information must appear in the
notice:
(2) As soon as is practicable after the court determines that a claim or defense is
maintainable on behalf of a class, notice of the pendency of the claim or defense
shall be given by the party asserting the existence of the class to all the members
of the class. The notice shall be given to each member of the class who can be
identified and located through reasonable effort and shall be given to the other
members of the class in the manner determined by the court to be most practicable
under the circumstances. Unless otherwise ordered by the court, the party asserting
the existence of the class shall initially pay for the cost of giving notice. The notice
shall inform each member of the class that (A) any member of the class who files
a statement with the court by the date specified in the notice asking to be excluded
shall be excluded from the class, (B) the judgment, whether favorable or not, will
include all members who do not request exclusion, and (C) any member who does
not request exclusion may make a separate appearance within the time specified
in the notice.
Fla. R. Civ. P. 1.220(d)(2) (emphasis added).
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10. The written notice must “clearly and concisely state in plain, easily understood
language” all of the information required by Rule 1.220(d)(2). Fed. R. Civ. P. 23(c)(2)(B). 1
11. The commentary to Rule 23 states:
The direction that class-certification notice be couched in plain, easily understood
language is a reminder of the need to work unremittingly at the difficult task of
communicating with class members. It is difficult to provide information about
most class actions that is both accurate and easily understood by class members
who are not themselves lawyers. Factual uncertainty, legal complexity, and the
complication of class-action procedure raise the barriers high. The Federal Judicial
Center has created illustrative clear-notice forms that provide a helpful starting
point for actions similar to those described in the forms.
12. In other words, the notice “should be drafted in a way that it is understandable by
the people to whom it is directed.” Nelson v. Wakulla Cnty., 985 So. 2d 564, 577 (Fla. 1st DCA
2008).
13. The failure to provide proper notice can result in decertification of the class. Ves
Carpenter Contractors, Inc. v. City of Dania, 422 So. 2d 342, 346 (Fla. 4th DCA 1982) (“The
next point on appeal concerns the propriety of the trial court's post-trial decertification of the class.
This ruling resulted from the court's finding that Ves had failed to notify the other members of the
plaintiff class as required by Frankel v. City of Miami Beach, 340 So. 2d 463 (Fla. 1977). . . . Eisen
and Frankel announced a constitutional due process requirement that overrides inconsistent
procedural rules. Since the error was incapable of being cured in this case, the trial court had no
choice but to decertify the class once it discovered this fundamental procedural defect.”); Palm
1
Concerned Class Members v. Sailfish Point, Inc., 704 So. 2d 200, 201 (Fla. 4th
DCA 1998) (recognizing that “Florida’s Class Action rule, Florida Rule of Civil Procedure 1.220,
is based on Federal Rule of Civil Procedure 23, and this court may look to federal cases as
persuasive authority in the interpretation of rule 1.220”)
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Case No.: 17-22854 CA (21)
Beach Cnty. v. Gene A. Bernard & Assocs., Inc., 566 So. 2d 886, 888 (Fla. 4th DCA 1990)
(favorably citing Ves Carpenter).
B. The Flaws in Plaintiffs’ Proposed Notice.
14. Plaintiffs’ Proposed Notice is flawed because it is not clear or concise and does not
use “plain, easily understood language.” See Exhibit B to the Notice Program Motion.
15. Specifically, among other things, the notice itself does not clearly articulate the opt
out deadlines. Instead, it contains lengthy and unnecessary narratives concerning the procedural
posture, legal theories of the case, and causes of actions in language that are far too complicated
for lay people.
16. Moreover, it is drafted in a way to favor the Plaintiffs and discourage opt outs. The
language should be neutral.
C. FPL’s Proposed Notice.
17. FPL’s Proposed Notice does not contain any of the flaws that appear in Plaintiffs’
Proposed Notice. See Exhibit “1”
18. FPL’s Proposed Notice follows the format approved of by the Federal Judicial
Center in its “Judges’ Class Action Notice and Claims Process Checklist and Plain Language
Guide.” It is clear and concise. And it contains a form for class members to fill out in order to
exercise their opt out option.
19. This Court should adopt FPL’s Proposed Notice because it is clear and concise,
because it uses “plain, easily understood language,” and because it is drafted in a neutral manner.
D. FPL’s Opposition to MSP LifeWallet Serving as Claims Administrator.
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Defendant’s Opposition to Plaintiff’s Motion for Approval of Notice Program
Case No.: 17-22854 CA (21)
20. FPL opposes Plaintiffs’ suggestion that MSP LifeWallet serve as claims
administrator.
21. In support of FPL’s opposition, it adopts and incorporates the arguments it
articulated in its April 4, 2023 Motion for Appointment of an Independent Class Action Claims
Administrator.
WHEREFORE, FPL respectfully requests this Court enter an order (i) denying the Notice
Program Motion; (ii) authorizing and approving FPL’s proposed written notice, a copy of which
is attached hereto as Exhibit “1”; and (iii) granting FPL other relief as this Court deems proper.
HEISE SUAREZ MELVILLE, P.A. BOIES, SCHILLER & FLEXNER LLP
2990 Ponce De Leon Boulevard, Suite 300 401 East Las Olas Blvd.
Coral Gables, Florida 33134 Suite 1200
Telephone (305) 800-4476 Fort Lauderdale, FL 33301
Telephone: (954) 356-0011
By: /s/ Luis E. Suarez_______
Luis E. Suarez, Esq. By: /s/ Stuart H. Singer_______
Florida Bar No. 390021 Stuart H. Singer, Esq.
lsuarez@hsmpa.com (Florida Bar No. 377325)
Mark J. Heise Sashi C. Bach, Esq.
Florida Bar No. 771090 (Florida Bar No. 398276)
mheise@hsmpa.com Pascual Oliu, Esq.
Patricia Melville, Esq. (Florida Bar No. 107737)
Florida Bar No. 475467 ssinger@bsfllp.com
pmelville@hsmpa.com sbach@bsfllp.com
Dorian Daggs, Esq. poliu@bsfllp.com
Florida Bar No. 1028485 ftleserve@bsfllp.com
ddaggs@hsmpa.com
Thomas S. Ward Counsel for Defendant,
Florida Bar No. 28624 Florida Power & Light
tward@hsmpa.com
Counsel for Defendant,
Florida Power & Light
SQUIRE PATTON BOGGS (US) LLP
200 South Biscayne Boulevard, Suite 4700
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Defendant’s Opposition to Plaintiff’s Motion for Approval of Notice Program
Case No.: 17-22854 CA (21)
Miami, Florida 33131
Telephone: (305) 577-7000
By: /s/ Alvin B. Davis_______
Alvin B. Davis
(Florida Bar No. 218073)
Digna B. French
(Florida Bar No. 0148570)
Alvin.davis@squirepb.com
Digna.french@squirepb.com
FLA_DCKT@squirepb.com
Counsel for Defendant,
Florida Power & Light
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing was served via automatic
emails generated by the Florida Courts E-Filing Portal this April 4, 2023 on all counsel of record on
the attached Service List.
By: /s/ Luis E. Suarez
Luis E. Suarez, Esq.
Florida Bar No. 390021
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Case No.: 17-22854 CA (21)
SERVICE LIST
John H. Ruiz, Esq. Gonzalo R. Dorta, Esq.
MSP Recovery Law Firm Dorta Law
5000 SW 75 Ave, Suite 300 334 Minorca Avenue
Miami, FL 33155 Coral Gables, FL 33134
serve@msprecovery.com file@dortalaw.com
Counsel for Plaintiffs Counsel for Plaintiffs
J. Alfredo Armas, Esq. Julio C. Acosta, Esq.
Francesco A. Zincone, Esq. Simeon Genadiev, Esq.
Eduardo E. Bertran, Esq. Acosta Law Firm
Armas Bertran Pieri 301 Almeria Ave, Suite 100
4960 SW 72 Ave, Suite 206 Coral Gables, FL 33134
Miami, FL 33155 eservice@acostalaw.org
alfred@armaslaw.com
fzincone@armaslaw.com Counsel for Plaintiffs
Counsel for Plaintiffs
Stuart H. Singer, Esq. Alvin B. Davis, Esq.
Sashi C. Bach, Esq. Digna B. French, Esq.
Pascual Oliu, Esq. Squire Patton Boggs LLP
Boies Schiller & Flexner LLP 200 South Biscayne Blvd., Suite 4700
401 East Las Olas Blvd., Suite 1200 Miami, FL 33131
Fort Lauderdale, FL 33301 Alvin.davis@squirepb.com
ssinger@bsfllp.com Digna.french@squirepb.com
sbach@bsfllp.com Fla_dckt@squirepb.com
poliu@bsfllp.com
ftleserve@bsfllp.com Counsel for Defendant
Counsel for Defendant
Joseph Ianno, Jr., Esq.
Florida Power & Light Company
700 Universe Boulevard
Juno Beach, FL 33408
Joseph.iannojr@fpl.com
Counsel for Defendant
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EXHIBIT “1”
IN THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL
CIRCUIT IN AND FOR MIAMI-DADE COUNTY, FLORIDA
HEYDI VELEZ, et al., vs. FLORIDA POWER & LIGHT COMPANY
CASE NO. 2017-22854 CA (21)
IF YOU LOST ELECTRIC POWER DURING HURRICANE
IRMA, THEN YOU MAY BE A MEMBER OF A CLASS ACTION.
• A Florida state court has authorized this notice because a class action has been
certified and affirmed by the appellate court against FPL.
• The class is defined as follows:
All persons and business owners who reside and are otherwise citizens of the state of
Florida that entered into contractual agreement with FPL for electrical services, were
charged a storm charge, experienced a power outage after Hurricane Irma, and suffered
consequential damages, directly and proximately, because of FPL’s breach of contract
and/or gross negligence.
• The court has not decided whether FPL did anything wrong.
• This is not a lawyer solicitation.
• YOUR RIGHTS MAY BE AFFECTED BY THIS CLASS ACTION LAWSUIT.
• YOU HAVE NOT BEEN SUED.
YOUR LEGAL RIGHTS AND OPTIONS IN THIS LAWSUIT
EXCLUDE YOURSELF You will not be bound by the results of the lawsuit, whether
favorable or not. This is the only option that allows you to
ever be part of any other lawsuit against FPL about the legal
claims in this lawsuit. The deadline to exercise this option
is DATE.
DO NOTHING Remain a member of the class. You will be bound by the
results of the lawsuit, whether favorable or not.
If you choose not to exclude yourself from the case and remain in the case, you can have your
own lawyer represent your interests. You or your lawyer will need to enter an appearance if you
choose to represent yourself or have a lawyer other than class counsel represent you in this
matter.
Questions? Call XXX Consulting, Inc., the Claims Administrator, at 1-800-_______.
WHAT IS THIS NOTICE?
WHAT IS THIS LAWSUIT Plaintiffs allege that FPL charged them a monthly fee and
ABOUT? that FPL was supposed to use that money to improve FPL’s
infrastructure and lessen the likelihood that Plaintiffs
would lose power after a hurricane. Plaintiffs allege that,
since they lost power after Hurricane Irma, FPL did not
fulfill its obligations to Plaintiffs FPL disputes and is
defending against Plaintiffs’ claims and allegations.
WHY DID I GET THIS FPL’s records indicate that you may have been an FPL
NOTICE? customer in September 2017 and lived in a part of Florida
during Hurricane Irma and lost power afterwards.
HAS THE COURT DECIDED No. A jury trial is currently scheduled to commence on
WHO IS RIGHT? November 27, 2023.
WHAT ARE THE Plaintiffs are seeking to recover money damages for
PLAINTIFFS’ ASKING FOR? perishable food and goods, loss of income, loss of sleep,
intense discomfort, and other temporary relocation
expenses after losing power following Hurricane Irma.
IS THERE ANY MONEY No. FPL has not been determined to be liable for any
AVAILABLE NOW? damages. Trial is scheduled for November 27, 2023.
WHAT’S NEXT?
WHAT IF I WANT TO STAY Do nothing. You will be bound by the results of the
IN THE CLASS? lawsuit.
WHAT IF I DO NOT WANT You must timely opt out of the class.
TO BE BOUND BY THE
RESULTS OF THIS SUIT?
HOW DO I OPT OUT OF THE You must fill out the Opt Out Form on the last page of this
CLASS? notice and mail it to XXXX Consulting, Inc., the Claims
Administrator. Your Opt Out Form must be postmarked by
DATE.
WHAT IS THE DEADLINE Your Opt Out Form must be postmarked by DATE.
TO OPT OUT?
Page 2 of 3
WHERE DO I SEND MY OPT XXX Consulting, Inc.
OUT FORM? ADDRESS
WHAT IF I WANT TO SUE You must timely opt out of the class.
FPL DIRECTLY?
If you are an individual, then you can represent yourself in
any future lawsuit against FPL concerning the legal claims
in this lawsuit.
If you are an entity, then you will have to retain counsel to
represent you in your future lawsuit against FPL
concerning the legal claims in this lawsuit.
WHAT IF I WANT TO You can visit the Claims Administrator’s website:
LEARN MORE ABOUT THIS www.____________.com
LAWSUIT?
WHAT IF I WANT TO TALK The contact information for the attorneys who represent the
TO THE LAWYERS WHO class are as follows:
FILED THIS LAWSUIT?
John H Ruiz, Esq.
Alexis Fernandez, Esq.
MSP RECOVERY LAW FIRM
2701 S. Lejeune Road, 10th Floor
Coral Gables, Florida 33134
Phone: 305-614-2222
J. Alfredo Armas, Esq.
Eduardo Bertran, Esq.
Francesco Zincone, Esq.
Armas Bertran Zincone
4960 SW 72nd Ave., Ste. 206
Miami, FL 33155
Tel: (305) 461-5000
Gonzalo Dorta, Esq.
Dorta Law
334 Minorca Avenue
Coral Gables, FL 33434
(305) 441-2299
Julio C. Acosta, Esq.
Acosta Law Firm
301 Almeria Avenue, Ste. 100
Coral Gables, FL 33134
(305) 858-8880
Page 3 of 3
SAMPLE EXCLSUION FORM
PLEASE COMPLETE THE FOLLOWING FORM TO EXCLUDE YOURSELF FROM
THE CLASS
Name:__________________________
Service Address: __________________
__________________
Billing Address (if different from service address):_____________________
Account Number (if available; not required): _________________________
Signature:______________________________
______________________________________
If signing on behalf of a company, please identify title or position within the company
By providing the information above, the signer certifies that they wish to be excluded from
the Class, do not wish to be bound by the results of the lawsuit, whether favorable or
unfavorable, and that they have authority to sign.
Please mail to the following addresses:
NAME OF CLAIMS ADMINISTATOR
For your convenience, you may mail the exclusion request in the enclosed stamped, self-
addressed envelope.
CLASS ACTION NOTICE
HEYDI VELEZ, et al., vs. FLORIDA POWER & LIGHT COMPANY
CASE NO. 2017-22854 CA (21)
A class action lawsuit has been certified by the Eleventh Judicial Circuit in and for Miami-Dade County,
Florida. Plaintiffs allege that Florida Power & Light Company (“FPL”) charged them a monthly fee and
that FPL was supposed to use that money to improve FPL’s infrastructure and lessen the likelihood that
Plaintiffs would lose power after a hurricane. Plaintiffs allege that, since they lost power after Hurricane
Irma, FPL did not fulfill its obligations to Plaintiffs FPL disputes and is defending against Plaintiffs’ claims
and allegations.
Who is included in the class? All persons and business owners who reside and are otherwise citizens of
the state of Florida that entered into contractual agreement with FPL for electrical services, were charged a
storm charge, experienced a power outage after Hurricane Irma, and suffered consequential damages,
directly and proximately, because of FPL’s breach of contract and/or gross negligence.
What are your options? Your options are:
DO NOTHING Remain a member of the class. You will be bound by the results
of the lawsuit, whether favorable or not.
EXCLUDE YOURSELF You will not be bound by the results of the lawsuit, whether
favorable or not. This is the only option that allows you to ever
be part of any other lawsuit against FPL about the legal claims
in this lawsuit. The deadline to exercise this option is DATE.
If you choose not to exclude yourself from the case and remain in the case, you can have your own lawyer
represent your interests. You or your lawyer will need to enter an appearance if you choose to represent
yourself or have a lawyer other than class counsel represent you in this matter.
If I want to opt out of the class, how do I do that? You must fill out the Opt Out Form at the Claims
Administrator’s website: www.____________.com., and mail it to XXX Consulting, Inc., the Claims
Administrator.
Where do I mail the Opt Out Form? To Rust Consulting, Inc., ADDRESS.
What is the deadline to opt out? Your Opt Out Form must be postmarked by DATE.
Who is counsel for the class? Class counsel is comprised of (i) John H Ruiz, Esq. and Alexis Fernandez,
Esq. of MSP Recovery Law Firm; (ii) J. Alfredo Armas, Esq., Eduardo Bertran, Esq., Francesco Zincone,
Esq. of Armas Bertran Zincone; (iii) Gonzalo Dorta, Esq. of Dorta Law; and (iv) Julio C. Acosta, Esq. of
Acosta Law Firm
Where can I learn more about this class action? You can visit the Claims Administrator’s website:
www.____________.com.
If I still have questions, who should I contact? Call the Claims Administrator at 1-800-_______.
If you lost electric power during Hurricane Irma, then you may
be a member of a class action against Florida Power & Light
Company. To learn more, visit the Claims Administrator,
XXX Consulting, Inc.’s, website: www.____________.com.
Preview
Filing # 170354061 E-Filed 04/04/2023 10:40:43 PM IN THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL CIRCUIT IN AND FOR MIAMI-DADE COUNTY, FLORIDA GENERAL JURISDICTION DIVISION CASE NO. 2017-22854 CA (21) HEYDI VELEZ, et al., Plaintiffs, vs. FLORIDA POWER & LIGHT COMPANY, Defendant. ________________________________________/ DEFENDANT, FLORIDA POWER & LIGHT COMPANY’S, OPPOSITION TO PLAINTIFF’S MOTION FOR APPROVAL OF NOTICE PROGRAM AND DIRECTING NOTICE OF PENDENCY OF CLASS ACTION TO THE CLASS [D.E. 295] Pursuant to FLORIDA RULE OF CIVIL PROCEDURE 1.220(d)(2), Defendant, FLORIDA POWER & LIGHT COMPANY (“FPL”), (i) opposes Plaintiffs’ Motion for Approval of Notice Program and Directing Notice of Pendency of Class Action to the Class, filed April 3, 2023 [D.E. 295] (“Notice Program Motion”) and (ii) respectfully requests this Court instead authorize and approve FPL’s proposed written notice, a copy of which is attached hereto as Exhibit “1” (“FPL’s Proposed Notice”). INTRODUCTION Now that a class action has been certified and the class definition has been affirmed, Plaintiffs are obligated to notify the class members of the existence of the class and of the deadlines, obligations, responsibilities, and risks associated with their membership in the class. The law requires that this information must be transmitted to each class member in writing, 1 2990 Ponce De Leon Blvd., Suite 300, Coral Gables, FL 33134 | 305-800-4476 Defendant’s Opposition to Plaintiff’s Motion for Approval of Notice Program Case No.: 17-22854 CA (21) “clearly and concisely” and “in plain, easily understood language.” Plaintiffs’ proposed notice fails to accomplish this. FPL, alternatively, has provided a proposed notice that does accomplish that. Accordingly, this Court should adopt FPL’s proposed notice. Moreover, Plaintiffs have suggested that the business (i.e., MSP Recovery, LLC d/b/a LifeWallet (“MSP LifeWallet”)), which is owned and operated by one of Plaintiffs’ attorneys (i.e., MSP Recovery, LLC and/or MSP Recovery, Inc.) which in turn is operated by one of their attorneys (i.e., John Ruiz, Esq. of MSP Recovery Law Firm) could serve as the claims administrator here. FPL objects to that suggestion given MSP LifeWallet’s lack of independence combined with its lack of experience serving as a class action claims administrator. RELEVANT PROCEDURAL BACKGROUND 1. On December 31, 2021, this Court entered a class certification order [D.E. 224], which certified the following class: All persons and business owners who reside and are otherwise citizens of the state of Florida that entered into contractual agreement with FPL for electrical services, were charged a storm charge, experienced a power outage after Hurricane Irma, and suffered consequential damages, directly and proximately, because of FPL’s breach of contract and/or gross negligence. 2. On March 22, 2023, the Third District Court of Appeal affirmed the class certification order (“Appellate Opinion”). [D.E. 281] 3. On March 31, 2023, FPL moved for rehearing and rehearing en banc directed to the Appellate Opinion. That appellate motion is still pending in the Third District. 4. In the meantime, a jury trial is currently scheduled for November 2023, just eight months away. 2 2990 Ponce De Leon Blvd., Suite 300, Coral Gables, FL 33134 | 305-800-4476 Defendant’s Opposition to Plaintiff’s Motion for Approval of Notice Program Case No.: 17-22854 CA (21) 5. Because of the stay that was imposed, not a single class member who is not a named Plaintiff has been alerted to his or her rights and obligations in this class action. 6. On April 3, 2023, Plaintiffs filed the Notice Program Motion. [D.E. 295] 7. Plaintiffs’ proposed written notice to the class (“Plaintiffs’ Proposed Notice”) is attached as Exhibit B to the Notice Program Motion Id. ARGUMENT A. The Legal Requirements for Class Notice. 8. Now that a class has been certified, the Named Plaintiffs are legally obligated to provide notice to the class. 9. The applicable rule of procedure describes what information must appear in the notice: (2) As soon as is practicable after the court determines that a claim or defense is maintainable on behalf of a class, notice of the pendency of the claim or defense shall be given by the party asserting the existence of the class to all the members of the class. The notice shall be given to each member of the class who can be identified and located through reasonable effort and shall be given to the other members of the class in the manner determined by the court to be most practicable under the circumstances. Unless otherwise ordered by the court, the party asserting the existence of the class shall initially pay for the cost of giving notice. The notice shall inform each member of the class that (A) any member of the class who files a statement with the court by the date specified in the notice asking to be excluded shall be excluded from the class, (B) the judgment, whether favorable or not, will include all members who do not request exclusion, and (C) any member who does not request exclusion may make a separate appearance within the time specified in the notice. Fla. R. Civ. P. 1.220(d)(2) (emphasis added). 3 2990 Ponce De Leon Blvd., Suite 300, Coral Gables, FL 33134 | 305-800-4476 Defendant’s Opposition to Plaintiff’s Motion for Approval of Notice Program Case No.: 17-22854 CA (21) 10. The written notice must “clearly and concisely state in plain, easily understood language” all of the information required by Rule 1.220(d)(2). Fed. R. Civ. P. 23(c)(2)(B). 1 11. The commentary to Rule 23 states: The direction that class-certification notice be couched in plain, easily understood language is a reminder of the need to work unremittingly at the difficult task of communicating with class members. It is difficult to provide information about most class actions that is both accurate and easily understood by class members who are not themselves lawyers. Factual uncertainty, legal complexity, and the complication of class-action procedure raise the barriers high. The Federal Judicial Center has created illustrative clear-notice forms that provide a helpful starting point for actions similar to those described in the forms. 12. In other words, the notice “should be drafted in a way that it is understandable by the people to whom it is directed.” Nelson v. Wakulla Cnty., 985 So. 2d 564, 577 (Fla. 1st DCA 2008). 13. The failure to provide proper notice can result in decertification of the class. Ves Carpenter Contractors, Inc. v. City of Dania, 422 So. 2d 342, 346 (Fla. 4th DCA 1982) (“The next point on appeal concerns the propriety of the trial court's post-trial decertification of the class. This ruling resulted from the court's finding that Ves had failed to notify the other members of the plaintiff class as required by Frankel v. City of Miami Beach, 340 So. 2d 463 (Fla. 1977). . . . Eisen and Frankel announced a constitutional due process requirement that overrides inconsistent procedural rules. Since the error was incapable of being cured in this case, the trial court had no choice but to decertify the class once it discovered this fundamental procedural defect.”); Palm 1 Concerned Class Members v. Sailfish Point, Inc., 704 So. 2d 200, 201 (Fla. 4th DCA 1998) (recognizing that “Florida’s Class Action rule, Florida Rule of Civil Procedure 1.220, is based on Federal Rule of Civil Procedure 23, and this court may look to federal cases as persuasive authority in the interpretation of rule 1.220”) 4 2990 Ponce De Leon Blvd., Suite 300, Coral Gables, FL 33134 | 305-800-4476 Defendant’s Opposition to Plaintiff’s Motion for Approval of Notice Program Case No.: 17-22854 CA (21) Beach Cnty. v. Gene A. Bernard & Assocs., Inc., 566 So. 2d 886, 888 (Fla. 4th DCA 1990) (favorably citing Ves Carpenter). B. The Flaws in Plaintiffs’ Proposed Notice. 14. Plaintiffs’ Proposed Notice is flawed because it is not clear or concise and does not use “plain, easily understood language.” See Exhibit B to the Notice Program Motion. 15. Specifically, among other things, the notice itself does not clearly articulate the opt out deadlines. Instead, it contains lengthy and unnecessary narratives concerning the procedural posture, legal theories of the case, and causes of actions in language that are far too complicated for lay people. 16. Moreover, it is drafted in a way to favor the Plaintiffs and discourage opt outs. The language should be neutral. C. FPL’s Proposed Notice. 17. FPL’s Proposed Notice does not contain any of the flaws that appear in Plaintiffs’ Proposed Notice. See Exhibit “1” 18. FPL’s Proposed Notice follows the format approved of by the Federal Judicial Center in its “Judges’ Class Action Notice and Claims Process Checklist and Plain Language Guide.” It is clear and concise. And it contains a form for class members to fill out in order to exercise their opt out option. 19. This Court should adopt FPL’s Proposed Notice because it is clear and concise, because it uses “plain, easily understood language,” and because it is drafted in a neutral manner. D. FPL’s Opposition to MSP LifeWallet Serving as Claims Administrator. 5 2990 Ponce De Leon Blvd., Suite 300, Coral Gables, FL 33134 | 305-800-4476 Defendant’s Opposition to Plaintiff’s Motion for Approval of Notice Program Case No.: 17-22854 CA (21) 20. FPL opposes Plaintiffs’ suggestion that MSP LifeWallet serve as claims administrator. 21. In support of FPL’s opposition, it adopts and incorporates the arguments it articulated in its April 4, 2023 Motion for Appointment of an Independent Class Action Claims Administrator. WHEREFORE, FPL respectfully requests this Court enter an order (i) denying the Notice Program Motion; (ii) authorizing and approving FPL’s proposed written notice, a copy of which is attached hereto as Exhibit “1”; and (iii) granting FPL other relief as this Court deems proper. HEISE SUAREZ MELVILLE, P.A. BOIES, SCHILLER & FLEXNER LLP 2990 Ponce De Leon Boulevard, Suite 300 401 East Las Olas Blvd. Coral Gables, Florida 33134 Suite 1200 Telephone (305) 800-4476 Fort Lauderdale, FL 33301 Telephone: (954) 356-0011 By: /s/ Luis E. Suarez_______ Luis E. Suarez, Esq. By: /s/ Stuart H. Singer_______ Florida Bar No. 390021 Stuart H. Singer, Esq. lsuarez@hsmpa.com (Florida Bar No. 377325) Mark J. Heise Sashi C. Bach, Esq. Florida Bar No. 771090 (Florida Bar No. 398276) mheise@hsmpa.com Pascual Oliu, Esq. Patricia Melville, Esq. (Florida Bar No. 107737) Florida Bar No. 475467 ssinger@bsfllp.com pmelville@hsmpa.com sbach@bsfllp.com Dorian Daggs, Esq. poliu@bsfllp.com Florida Bar No. 1028485 ftleserve@bsfllp.com ddaggs@hsmpa.com Thomas S. Ward Counsel for Defendant, Florida Bar No. 28624 Florida Power & Light tward@hsmpa.com Counsel for Defendant, Florida Power & Light SQUIRE PATTON BOGGS (US) LLP 200 South Biscayne Boulevard, Suite 4700 6 2990 Ponce De Leon Blvd., Suite 300, Coral Gables, FL 33134 | 305-800-4476 Defendant’s Opposition to Plaintiff’s Motion for Approval of Notice Program Case No.: 17-22854 CA (21) Miami, Florida 33131 Telephone: (305) 577-7000 By: /s/ Alvin B. Davis_______ Alvin B. Davis (Florida Bar No. 218073) Digna B. French (Florida Bar No. 0148570) Alvin.davis@squirepb.com Digna.french@squirepb.com FLA_DCKT@squirepb.com Counsel for Defendant, Florida Power & Light CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing was served via automatic emails generated by the Florida Courts E-Filing Portal this April 4, 2023 on all counsel of record on the attached Service List. By: /s/ Luis E. Suarez Luis E. Suarez, Esq. Florida Bar No. 390021 7 2990 Ponce De Leon Blvd., Suite 300, Coral Gables, FL 33134 | 305-800-4476 Defendant’s Opposition to Plaintiff’s Motion for Approval of Notice Program Case No.: 17-22854 CA (21) SERVICE LIST John H. Ruiz, Esq. Gonzalo R. Dorta, Esq. MSP Recovery Law Firm Dorta Law 5000 SW 75 Ave, Suite 300 334 Minorca Avenue Miami, FL 33155 Coral Gables, FL 33134 serve@msprecovery.com file@dortalaw.com Counsel for Plaintiffs Counsel for Plaintiffs J. Alfredo Armas, Esq. Julio C. Acosta, Esq. Francesco A. Zincone, Esq. Simeon Genadiev, Esq. Eduardo E. Bertran, Esq. Acosta Law Firm Armas Bertran Pieri 301 Almeria Ave, Suite 100 4960 SW 72 Ave, Suite 206 Coral Gables, FL 33134 Miami, FL 33155 eservice@acostalaw.org alfred@armaslaw.com fzincone@armaslaw.com Counsel for Plaintiffs Counsel for Plaintiffs Stuart H. Singer, Esq. Alvin B. Davis, Esq. Sashi C. Bach, Esq. Digna B. French, Esq. Pascual Oliu, Esq. Squire Patton Boggs LLP Boies Schiller & Flexner LLP 200 South Biscayne Blvd., Suite 4700 401 East Las Olas Blvd., Suite 1200 Miami, FL 33131 Fort Lauderdale, FL 33301 Alvin.davis@squirepb.com ssinger@bsfllp.com Digna.french@squirepb.com sbach@bsfllp.com Fla_dckt@squirepb.com poliu@bsfllp.com ftleserve@bsfllp.com Counsel for Defendant Counsel for Defendant Joseph Ianno, Jr., Esq. Florida Power & Light Company 700 Universe Boulevard Juno Beach, FL 33408 Joseph.iannojr@fpl.com Counsel for Defendant 8 2990 Ponce De Leon Blvd., Suite 300, Coral Gables, FL 33134 | 305-800-4476 EXHIBIT “1” IN THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL CIRCUIT IN AND FOR MIAMI-DADE COUNTY, FLORIDA HEYDI VELEZ, et al., vs. FLORIDA POWER & LIGHT COMPANY CASE NO. 2017-22854 CA (21) IF YOU LOST ELECTRIC POWER DURING HURRICANE IRMA, THEN YOU MAY BE A MEMBER OF A CLASS ACTION. • A Florida state court has authorized this notice because a class action has been certified and affirmed by the appellate court against FPL. • The class is defined as follows: All persons and business owners who reside and are otherwise citizens of the state of Florida that entered into contractual agreement with FPL for electrical services, were charged a storm charge, experienced a power outage after Hurricane Irma, and suffered consequential damages, directly and proximately, because of FPL’s breach of contract and/or gross negligence. • The court has not decided whether FPL did anything wrong. • This is not a lawyer solicitation. • YOUR RIGHTS MAY BE AFFECTED BY THIS CLASS ACTION LAWSUIT. • YOU HAVE NOT BEEN SUED. YOUR LEGAL RIGHTS AND OPTIONS IN THIS LAWSUIT EXCLUDE YOURSELF You will not be bound by the results of the lawsuit, whether favorable or not. This is the only option that allows you to ever be part of any other lawsuit against FPL about the legal claims in this lawsuit. The deadline to exercise this option is DATE. DO NOTHING Remain a member of the class. You will be bound by the results of the lawsuit, whether favorable or not. If you choose not to exclude yourself from the case and remain in the case, you can have your own lawyer represent your interests. You or your lawyer will need to enter an appearance if you choose to represent yourself or have a lawyer other than class counsel represent you in this matter. Questions? Call XXX Consulting, Inc., the Claims Administrator, at 1-800-_______. WHAT IS THIS NOTICE? WHAT IS THIS LAWSUIT Plaintiffs allege that FPL charged them a monthly fee and ABOUT? that FPL was supposed to use that money to improve FPL’s infrastructure and lessen the likelihood that Plaintiffs would lose power after a hurricane. Plaintiffs allege that, since they lost power after Hurricane Irma, FPL did not fulfill its obligations to Plaintiffs FPL disputes and is defending against Plaintiffs’ claims and allegations. WHY DID I GET THIS FPL’s records indicate that you may have been an FPL NOTICE? customer in September 2017 and lived in a part of Florida during Hurricane Irma and lost power afterwards. HAS THE COURT DECIDED No. A jury trial is currently scheduled to commence on WHO IS RIGHT? November 27, 2023. WHAT ARE THE Plaintiffs are seeking to recover money damages for PLAINTIFFS’ ASKING FOR? perishable food and goods, loss of income, loss of sleep, intense discomfort, and other temporary relocation expenses after losing power following Hurricane Irma. IS THERE ANY MONEY No. FPL has not been determined to be liable for any AVAILABLE NOW? damages. Trial is scheduled for November 27, 2023. WHAT’S NEXT? WHAT IF I WANT TO STAY Do nothing. You will be bound by the results of the IN THE CLASS? lawsuit. WHAT IF I DO NOT WANT You must timely opt out of the class. TO BE BOUND BY THE RESULTS OF THIS SUIT? HOW DO I OPT OUT OF THE You must fill out the Opt Out Form on the last page of this CLASS? notice and mail it to XXXX Consulting, Inc., the Claims Administrator. Your Opt Out Form must be postmarked by DATE. WHAT IS THE DEADLINE Your Opt Out Form must be postmarked by DATE. TO OPT OUT? Page 2 of 3 WHERE DO I SEND MY OPT XXX Consulting, Inc. OUT FORM? ADDRESS WHAT IF I WANT TO SUE You must timely opt out of the class. FPL DIRECTLY? If you are an individual, then you can represent yourself in any future lawsuit against FPL concerning the legal claims in this lawsuit. If you are an entity, then you will have to retain counsel to represent you in your future lawsuit against FPL concerning the legal claims in this lawsuit. WHAT IF I WANT TO You can visit the Claims Administrator’s website: LEARN MORE ABOUT THIS www.____________.com LAWSUIT? WHAT IF I WANT TO TALK The contact information for the attorneys who represent the TO THE LAWYERS WHO class are as follows: FILED THIS LAWSUIT? John H Ruiz, Esq. Alexis Fernandez, Esq. MSP RECOVERY LAW FIRM 2701 S. Lejeune Road, 10th Floor Coral Gables, Florida 33134 Phone: 305-614-2222 J. Alfredo Armas, Esq. Eduardo Bertran, Esq. Francesco Zincone, Esq. Armas Bertran Zincone 4960 SW 72nd Ave., Ste. 206 Miami, FL 33155 Tel: (305) 461-5000 Gonzalo Dorta, Esq. Dorta Law 334 Minorca Avenue Coral Gables, FL 33434 (305) 441-2299 Julio C. Acosta, Esq. Acosta Law Firm 301 Almeria Avenue, Ste. 100 Coral Gables, FL 33134 (305) 858-8880 Page 3 of 3 SAMPLE EXCLSUION FORM PLEASE COMPLETE THE FOLLOWING FORM TO EXCLUDE YOURSELF FROM THE CLASS Name:__________________________ Service Address: __________________ __________________ Billing Address (if different from service address):_____________________ Account Number (if available; not required): _________________________ Signature:______________________________ ______________________________________ If signing on behalf of a company, please identify title or position within the company By providing the information above, the signer certifies that they wish to be excluded from the Class, do not wish to be bound by the results of the lawsuit, whether favorable or unfavorable, and that they have authority to sign. Please mail to the following addresses: NAME OF CLAIMS ADMINISTATOR For your convenience, you may mail the exclusion request in the enclosed stamped, self- addressed envelope. CLASS ACTION NOTICE HEYDI VELEZ, et al., vs. FLORIDA POWER & LIGHT COMPANY CASE NO. 2017-22854 CA (21) A class action lawsuit has been certified by the Eleventh Judicial Circuit in and for Miami-Dade County, Florida. Plaintiffs allege that Florida Power & Light Company (“FPL”) charged them a monthly fee and that FPL was supposed to use that money to improve FPL’s infrastructure and lessen the likelihood that Plaintiffs would lose power after a hurricane. Plaintiffs allege that, since they lost power after Hurricane Irma, FPL did not fulfill its obligations to Plaintiffs FPL disputes and is defending against Plaintiffs’ claims and allegations. Who is included in the class? All persons and business owners who reside and are otherwise citizens of the state of Florida that entered into contractual agreement with FPL for electrical services, were charged a storm charge, experienced a power outage after Hurricane Irma, and suffered consequential damages, directly and proximately, because of FPL’s breach of contract and/or gross negligence. What are your options? Your options are: DO NOTHING Remain a member of the class. You will be bound by the results of the lawsuit, whether favorable or not. EXCLUDE YOURSELF You will not be bound by the results of the lawsuit, whether favorable or not. This is the only option that allows you to ever be part of any other lawsuit against FPL about the legal claims in this lawsuit. The deadline to exercise this option is DATE. If you choose not to exclude yourself from the case and remain in the case, you can have your own lawyer represent your interests. You or your lawyer will need to enter an appearance if you choose to represent yourself or have a lawyer other than class counsel represent you in this matter. If I want to opt out of the class, how do I do that? You must fill out the Opt Out Form at the Claims Administrator’s website: www.____________.com., and mail it to XXX Consulting, Inc., the Claims Administrator. Where do I mail the Opt Out Form? To Rust Consulting, Inc., ADDRESS. What is the deadline to opt out? Your Opt Out Form must be postmarked by DATE. Who is counsel for the class? Class counsel is comprised of (i) John H Ruiz, Esq. and Alexis Fernandez, Esq. of MSP Recovery Law Firm; (ii) J. Alfredo Armas, Esq., Eduardo Bertran, Esq., Francesco Zincone, Esq. of Armas Bertran Zincone; (iii) Gonzalo Dorta, Esq. of Dorta Law; and (iv) Julio C. Acosta, Esq. of Acosta Law Firm Where can I learn more about this class action? You can visit the Claims Administrator’s website: www.____________.com. If I still have questions, who should I contact? Call the Claims Administrator at 1-800-_______. If you lost electric power during Hurricane Irma, then you may be a member of a class action against Florida Power & Light Company. To learn more, visit the Claims Administrator, XXX Consulting, Inc.’s, website: www.____________.com.