Opinion
Civil Action No. 01-CV-6126.
April 23, 2002.
MEMORANDUM
Plaintiffs have moved for class certification, pursuant to Federal Rule of Civil Procedure 23, of all persons who were participants in the United International Investigative Services ("UIIS") 401(k) Savings Plan from April 1, 1999 to December 7, 2001. For the following reasons, the unopposed motion will be granted.
Although the amended motion of plaintiffs for class certification requests December 7, 1998, as the opening date for the class period, defendants observe in their response, and plaintiffs have acquiesced by letter to the Court, that the current record supports only a class period starting from April 1, 1999. The class period may be adjusted as necessary upon further discovery.
A. Factual Background
The named plaintiffs are employees of defendant UIIS, a corporation that provides protective security services to various government buildings and agencies, including federal courthouses in the Third, Fourth, and Ninth Judicial Circuits and U.S. embassies abroad. As part of their employment package, UIIS offers a 401(k) Savings Plan. Under the plan, employees may contribute up to twenty-five percent of their wages to their individual account. UIIS makes a contribution of approximately forty-two cents per hour into the plan on behalf of each employee or the employee may receive this amount in cash. Pursuant to U.S. Department of Labor regulations, 401(k) plan deductions from an employee's pay must be placed into the individual's account by the fifteenth of the month following the deduction. Plaintiffs allege that on repeated occasions, deposits of the employees' deductions were delayed, at times up to three months. Plaintiffs further allege that UIIS failed to make timely deposits of employer contributions to the accounts as required. Plaintiffs assert claims under 29 U.S.C. § 1104 and 1106(b) for breach of fiduciary duty and prohibited transactions. Jurisdiction in this matter is proper pursuant to 28 U.S.C. § 1331.
B. Standard for Class Certification
To be certified, a class must fulfill the prerequisites of Federal Rule of Civil Procedure 23(a) and must demonstrate that the action is maintainable under Federal Rule of Civil Procedure 23(b). The burden of establishing that these prerequisites have been met lies with the plaintiffs. See Nelson v. Astra Merck, Inc., C.A. No. 98-1283, 1998 U.S. Dist. LEXIS 16599, at *2 (E.D.Pa. Oct. 22, 1998). District Courts have large discretion in determining whether to certify a class. See Reiter v. Sonotone Corp., 442 U.S. 330, 345, 99 S.Ct. 2326, 2334, 60 L.Ed.2d 931 (1979); Stewart v. Assoc. Consumer Discount Co., 183 F.R.D. 189, 193 (E.D.Pa. 1998). The Court must refrain from inquiring into the merits of the claims. See Barnes v. Am. Tobacco Co., 161 F.3d 127, 140 (3d Cir. 1998), cert. denied, 526 U.S. 1114 (1999). At the same time, "sometimes it may be necessary for the court to probe behind the pleadings before coming to rest on the certification question." General Tel. Co. of Southwest v. Falcon, 457 U.S. 147, 160, 102 S.Ct. 2364, 2372, 72 L.Ed.2d 740 (1982). Succinctly put, the Court may only certify a class after employing a "rigorous analysis" as to whether Rule 23 has been satisfied. Id. at 161.
In addition, an order to certify a class "may be conditional and may be altered or amended before the decision on the merits." Fed.R.Civ.P. 23(c)(1). Under this rule, District Courts must regularly reassess their rulings as the case develops. See Barnes v. Am. Tobacco Co., 161 F.3d 127, 134 n. 4 (3d Cir. 1998), cert. denied, 526 U.S. 1114 (1999).
1. Rule 23(a). Prerequisites to a class action.
Rule 23(a) presents four threshold requisites: (1) numerosity; (2) commonality; (3) typicality; and (4) adequacy of representation. Fed.R.Civ.P. 23(a). "`The requirements of Rule 23(a) are meant to assure both that class action treatment is necessary and efficient and that it is fair to the absentees under the particular circumstances.'" Barnes, 161 F.3d at 140 (quoting Baby Neal v. Casey, 43 F.3d 48, 55 (3d Cir. 1994)).
Specifically, Rule 23(a) provides: "One or more members of a class may sue or be sued as representative parties on behalf of all, only if (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).
In general, the numerosity requirement addresses the concern that class actions be limited to those cases that necessitate the unique class action model. See Baby Neal v. Casey, 43 F.3d 48, 55 (3d Cir. 1994). The latter three requirements speak to efficiency and fairness. See id. While these four prerequisites are neatly divided and defined in the Rules, in practice, the latter three are murky concepts which overlap.
As recognized by the Supreme Court:
The commonality and typicality requirements of Rule 23(a) tend to merge. Both serve as guideposts for determining whether under the particular circumstances maintenance of a class action is economical and whether the named plaintiff's claim and the class claims are so interrelated that the interests of the class members will be fairly and adequately protected in their absence. Those requirements therefore also tend to merge with the adequacy-of-representation requirement, although the latter also raises concerns about the competency of class counsel and conflicts of interest.Falcon, 457 U.S. at 158 n. 13; accord Weiss v. York Hosp., 745 F.2d 786, 809-10 n. 36 (3d Cir. 1984) (citing 4 Herbert Newberg, Newberg on Class Actions § 7983 and 7 C. Wright A, Miller, Federal Practice and Procedure § 1764 (1972) for proposition that three requirements intersect and discussing overlap at length).
Most recently, the Court of Appeals for the Third Circuit explicitly aligned typicality with adequate representation. See Georgine v. Amchem Prod., 83 F.3d 610, 632 (3d Cir. 1996) ("we think that typicality is more akin to adequacy of representation: both look to the potential for conflicts."); Goodman v. Lukens Steel Co., 777 F.2d 113, 123 (3d Cir. 1986) (concluding that "the typicality of [plaintiffs'] claims [in this case] makes them adequate representatives under Rule 23."); but cf. Baby Neal, 43 F.3d at 56 ("The concepts of commonality and typicality are broadly defined and tend to merge."); Hassine v. Jeffes, 846 F.2d 169, 176 n. 4 (3d Cir. 1988) (determining that because commonality and typicality prerequisites overlap they should be discussed together);Draughn v. F.M.C. Corp., 74 F.R.D. 639 (E.D.Pa. 1977) (determining that in employment discrimination case commonality and typicality prerequisites are interchangeable).
(a). Numerosity
In order to meet the numerosity requirement, plaintiffs must assert more than a "naked assertion" or "mere allegation" of the class size; however, a precise number is not mandated. 5 Herbert Newberg, Newberg on Class Actions ("Newberg") § 24.17 at 24-69-24-70 (3d ed. 1992). There exists no "`hard and fast number rule.'" Weiss v. York Hosp., 745 F.2d 786, 808 n. 35 (3d Cir. 1984), cert. denied, 470 U.S. 1060 (1985) (quoting 3 B J. Moore J. Kennedy, Moore's Federal Practice ¶ 23.05[1], at 23-150 (2d ed. 1982)). In general, twenty-one has been deemed too few, twenty-one to forty have received mixed responses, and classes exceeding forty, especially in excess of one hundred or one thousand, have easily met the numerosity requirement. See id.
In the instant action, the proposed class comprise the plan participants and beneficiaries of the UIIS 401(k) Savings Plan. Plaintiffs allege, and defendants agree, that the class size would be in the area of 1500 employees. This number exceeds the minimum requirements to satisfy Rule 23(a). I therefore conclude that plaintiffs have satisfied the numerosity element of class certification.
(b). Commonality
The Court of Appeals for the Third Circuit has recognized a "`very low threshold for commonality.'" Barnes, 161 F.3d at 141 n. 15 (3d Cir. 1998) (quoting Georgine v. Amchem Prods. Inc., 83 F.3d 610, 627 (3d. Cir. 1996)). All class members need not share identical claims. See In re Prudential Ins. Co. of Am. Sales Practices Litig., 148 F.3d 283, 310 (3d Cir. 1998), cert. denied, 525 U.S. 1114 (1999). Specifically, named plaintiffs need only share one common question of law or fact. See Barnes, 161 F.3d at 140. Demonstrating that all class members are merely subject to the same injury will pass muster under this requirement. See Baby Neal v. Casey, 43 F.3d 48, 56 (3d Cir. 1994). Classes have been certified in civil rights cases ". . . where commonality findings were based primarily on the fact that defendant's conduct is central to the claims of all class members irrespective of their individual circumstances and the disparate effects of the conduct." Id. at 57.
Plaintiffs allege that defendants have engaged in an illegal course of conduct by delaying the deposits of the employees' 401(k) wage deductions. Whether defendants engaged in prohibited transactions and thereby breached their fiduciary duty to the members of the proposed class is a question common to the claims asserted. I find that plaintiffs have alleged that the claims stem from the same alleged conduct of defendants, and that there exist common questions of law and fact to the members of the proposed class. Consequently, I conclude that plaintiffs have met the commonality factor of class certification.
(c). Typicality
The purpose of the typicality requirement is to "align the interests of the class and the class representatives" in such a way that the latter will work on behalf of the entire class when pursuing individual goals.Barnes, 161 F.3d at 141. The requirement does not demand that all class members "share identical claims." Id. "'[F]actual differences will not render a claim atypical if the claim arises from the same event or practice or course of conduct that gives rise to the claims of the class members, and if it is based on the same legal theory.'" Id. (quoting 1 Newberg § 3.15, at 3-78). Even strong factual differences will not defeat a finding of typicality as long as the legal theories being asserted bear strong similarities. See Baby Neal, 43 F.3d at 58. As with a commonality analysis, "[c]ommentators have noted that cases challenging the same unlawful conduct which affects both the named plaintiffs and the putative class usually satisfy the typicality requirement irrespective of the varying fact patterns underlying the individual claims." Id. at 56, 58 (favorably citing district court opinion determining that typicality and commonality were satisfied "`because it is not the unique facts of the individual appeals which give rise to this action but rather the decision making process.'") (quoting Troutman v. Cohen, 661 F. Supp. 802, 811 (E.D.Pa. 1987)); see also Hassine v. Jeffes, 846 F.2d 169, 177 (3d Cir. 1988) (determining that Rule 23 does not mandate that "the representative plaintiff have endured precisely the same injuries that have been sustained by the class members, only that the harm complained of be common to the class, and that the named plaintiff demonstrate a personal interest or `threat of injury . . . [that] is real and immediate,' not `conjectural' or `hypothetical.'") (quoting O'Shea v. Littleton, 414 U.S. 488, 494, 94 S.Ct. 669, 675, 38 L.Ed.2d 674 (1974)).
In a seeming divergence from the standard articulated in this Circuit, the Supreme Court has "repeatedly held that `a class representative must be part of the class and possess the same interest and suffer the same injury' as the class members." Falcon, 457 U.S. at 156 (quoting East Texas Motor Freight Sys., 431 U.S. 395, 403, 97 S.Ct. 1891, 1896, 52 L.Ed.2d 453 (1977)). However, the Court of Appeals for the Third Circuit observed with respect to this language:
Standing alone, this language might suggest that class certification is always inappropriate when there are divergent interests between the named representative and absent class members. However, when read in context, it is evident that the Court did not intend to speak quite so broadly. The cases cited in support of the Court's statement did not concern the interpretation of Rule 23, but rather concerned the standing of the named representative to bring the suit. If the named representative has suffered no injury in fact relative to the class claims, the named representative may lack standing because of the Article III case or controversy requirement.Scott v. Univ. of Delaware, 601 F.2d 76, 86 n. 19 (3d Cir. 1979),cert. denied, 444 U.S. 931 (1979).
Plaintiffs assert a straightforward relationship between the named plaintiffs and the absent class members. Plaintiffs allege that UIIS delayed the deposit of the named plaintiffs' wage deductions into the named plaintiffs' 401(k) plans at various times, including but not limited to the period from April 1999 through March 2000, and as well that UIIS delayed the deposits for all other employees during the same period. Named plaintiffs assert that they have sustained injuries similar in nature and from the same source as the injuries sustained by the class. Defendants do not contend that the claims asserted by named plaintiffs are atypical of the claims of the purported class, consisting of all employees participating in the UIIS 401(k) Savings Plan during the relevant time period. I find that the claims asserted by named plaintiffs share the same essential characteristics as the claims of the proposed class. Accordingly, I conclude that the plaintiffs have satisfied the typicality factor of class certification.
(d). Adequate Representation
This final requirement necessitates two inquiries. See Barnes, 161 F.3d at 141. The first inquiry is whether counsel is qualified to prosecute class actions. See id. In this sense, adequate representation has been defined as "an assurance of vigorous prosecution" and "equated with the competence and experience of class counsel." Grasty v. Amalgamated Clothing and Textile Workers Union, 828 F.2d 123, 129 (3d Cir.), cert.denied, 484 U.S. 1042 (1987). The Court of Appeals for the Third Circuit has voiced ambivalence in denying certification on this ground alone if "other experienced class counsel could be attracted to associate as co-counsel and bolster the class' reputation." Id. Counsel chosen by plaintiffs is experienced in litigating similar claims in federal court and has been counsel in other class actions. I find that plaintiffs' choice for counsel is presently qualified to represent the class given the nature of the case as known to the Court at this time.
The second inquiry asks whether there exist any conflicts of interest between the named parties and the putative class. Barnes, 161 F.3d at 141. This inquiry ties into the typicality requirement because its importance lies in the fact that the named parties' interests cannot align with the interests of the class if the two are in conflict. See Georgine v. Amchem Prod. Inc., 83 F.3d 610, 630 (3d Cir. 1996), aff'd, 521 U.S. 591 (1997). In other words, conflicts prevent vigorous prosecution. The burden is on the defendants to show inadequacy of representation. See Lewis v. Curtis, 671 F.2d 779, 788 (3d Cir.), cert.denied, 459 U.S. 880 (1982). Plaintiffs assert that the interests of the named plaintiffs are not antagonistic to the interests of any member of the proposed class. Defendants do not argue to the contrary. I conclude that the plaintiffs have satisfied the adequacy factor of the Rule 23(a) requirements.
2. Rule 23(b).
In addition to meeting the four requirements of Rule 23(a), the proposed class must also qualify under one of the three sub-parts to Rule 23(b). Plaintiffs seek to qualify for certification under Rule 23(b)(2) and Rule 23(b)(3).
Rule 23(b) states in relevant part:
An action may be maintained as a class action if the prerequisites of subdivision (a) are satisfied, and in addition:
(1) the prosecution of separate actions by or against individual members of the class would create a risk of
(A) inconsistent or varying adjudications with respect to individual members of the class which would establish incompatible standards of conduct for the party opposing the class, or
(B) adjudications with respect to individual members of the class which would as a practical matter be dispositive of the interests of the other members not parties to the adjudications or substantially impair or impede their ability to protect their interests; or
(2) the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole; or
(3) the court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy.
Fed.R.Civ.P. 23(b).
Rule 23(b)(2) provides for certification where, "the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole." Fed.R.Civ.P. 23(b)(2). Class actions certified under (b)(2) are "limited to those class actions seeking primarily injunctive or corresponding declaratory relief." Barnes, 161 F.3d at 142 (quoting 1 Newberg § 4.11, at 4-39). Because unnamed members of classes certified under Rule 23(b)(2) are not given an opportunity to opt-out in the manner provided to members of classes certified Rule 23(b)(3), cohesion of the class is necessary. Id. at 142-43. Cohesion is presumed where plaintiffs request class-wide relief; in contrast, where monetary relief is requested, cohesion is less apparent, as awarding damages normally entails examination of individual claims. Miller v. Hygrade Food Prods. Corp., 198 F.R.D. 638, 641 (2001) (citing Allison v. Citgo Petroleum Corp., 151 F.3d 402, 413 (5th Cir. 1998). Moreover, because of the lack of an opportunity for members of a 23(b)(2) class to opt out, certification of a class seeking both compensatory and punitive damages under Rule 23(b)(2) triggers due process concerns. Id. at 642 n. 5 (citing Ticor Title Ins. Co. v. Brown, 511 U.S. 117, 120-21, 114 S.Ct. 1359, 128 L.Ed.2d 33 (1994)).
Plaintiffs have requested an injunction against defendants to require their compliance with the governing laws and terms of the UIIS 401(k) Savings Plan and any related agreements, but also seek to recover monetary damages. Thus, there is potential for the disruption of the cohesion of the class. Nevertheless, issues of individual differences are minimized as the parties have indicated in their preliminary reports that damages will most likely be calculated by a uniform damages standard set forth in 29 C.F.R. § 2510.3-102. (Doc. Nos. 10, 11.) Thus, from the current record, it appears that the danger of any tension within the class is lessened. To appease concerns of due process, however, the Court will adopt the divided certification method whereby a class can be certified for injunctive relief purposes under Rule 23(b)(2) and for damage purposes under Rule 23(b)(3). See Miller, 198 F.R.D. at 645 (citing Lemon v. Int'l Union of Operating Eng'rs, 216 F.3d 894, 898 (7th Cir. 2000); Jefferson v. Ingersoll Int'l Inc., 195 F.3d 894, 898 (7th Cir. 1999)). Under this method, I conclude that an injunctive class certified under Rule 23(b)(2) is appropriate.
Plaintiffs also qualify for certification of a damages class under Rule 23(b)(3). Rule 23(b)(3) provides for certification where:
[T]he court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy. The matters pertinent to the findings include: (A) the interest of members of the class in individually controlling the prosecution or defense of separate actions; (B) the extent and nature of any litigation concerning the controversy already commenced by or against members of the class; (C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; (D) the difficulties likely to be encountered in the management of a class action.
Fed.R.Civ.P. 23(b)(3) (emphasis added). Designed for "situations in which `class-action treatment is not as clearly called for' as it is in Rule 23(b)(1) and (b)(2) situations, Rule 23(b)(3) permits certification where class suit `may nevertheless be convenient and desirable.'" Amchem Prod. Inc. v. Windsor, 521 U.S. 591, 615, 117 S.Ct. 2231, 2245, 138 L.Ed.2d 689 (1997) (quoting Fed.R.Civ.P. 23(b)(3) Advisory Notes to 1966 Amendment). Where an action is certified under Rule 23(b)(3), class members are entitled to "opt out" of the class and thereby not be bound by the judgment rendered in the class action. See Fed.R.Civ.P. 23(c)(2);Amchen, 521 U.S. at 614-15.
In determining predominance of common questions of law or fact, the "court should determine if the various claims of the plaintiffs are sufficiently cohesive to justify treating them all in one, single judicial forum." Fry v. Hayt, 198 F.R.D. 461, 470 (E.D.Pa. 2000). While individual questions may arise in the course of further litigation, the existence of such possible questions does not automatically preclude a finding of predominance. See In re Prudential Ins. Co. Am. Sales Practices Litig., 148 F.3d 283, 315 (3d Cir. 1998). The central issue in the instant action is whether defendants engaged in the illegal practice of delaying deposits of proposed class members' 401(k) wage deductions. As stated above, the individual differences in recovery are minimized by the uniform damages standard in 29 C.F.R. § 2510.3-102. I find that the factual and legal issues common to the members of the class in the instant action predominate over any questions affecting only individual members.
I further find that a class action is a superior method of adjudication for this matter. The superiority requirement "asks [the Court] to balance, in terms of fairness and efficiency, the merits of the class action against those of `alternative available methods' of adjudication."Georgine, 83 F.3d at 632 (quoting Katz v. Carte Blanche Corp., 496 F.2d 747, 757 (3d Cir.) (en banc), cert. denied, 419 U.S. 885 (1974)). Cases where "the amounts at stake for individuals [are] so small that separate suits would be impracticable" are more suitable for class action treatment. Id. at 633 (quoting Fed.R.Civ.P. 23(b)(3) Advisory Notes to 1966 Amendment). The members of the proposed class in this action are unlikely to pursue claims outside of a class action context in light of the comparatively small individual damages recoverable. I find that a class action would be a fair and efficient manner of adjudicating this action. Defendants do not contest that a class action would be a superior method of adjudication. Consequently, I conclude that this action qualifies for class action certification under Rule 23(b)(3).
C. CLASS NOTICE
The proposed class having been conditionally certified under Rule 23(b)(3), counsel must provide proper notice to the class pursuant to Federal Rule of Civil Procedure 23(c)(2). Specifically, Rule 23(c)(2) states:
In any class action maintained under subdivision (b)(3), the court shall direct to the members of the class the best notice practicable under the circumstances, including individual notice to all members who can be identified through reasonable effort. The notice shall advise each member that (A) the court will exclude the member from the class if member so requests by a specified date; (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, if the member desires, enter an appearance through counsel.
Fed.R.Civ.P. 23(c)(2). This rule is "`designed to fulfill requirements of due process.'" Zimmer Paper Prods. Inc. v. Berger Montague, P.C., 758 F.2d 86, 90 (3d Cir. 1985) (quoting Fed.R.Civ.P. 23 Advisory Committee Notes to 1966 Amendment). "An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action, and afford them an opportunity to present their objections." Mullane v. Central Hanover Bank Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 94 L.Ed. 865 (1950). Courts may pay due regard to the circumstances of each case to determine whether the constitutional due process requirements are satisfied. Id. at 314-15.
The parties have submitted a joint form of notice and stipulation regarding the manner in which notice will be given. The notice sets forth the basic facts underlying the action at issue, the existence and nature of the proposed class action lawsuit, and the opportunity and method for members to opt out of the class action litigation. Defendants are to mail the notice to the last known address of the members as contained in its records. I find that the proposed notice plan satisfies the due process requirements for notice purposes.
Conclusion
For the reasons set forth above, the motion of plaintiffs to certify the class will be conditionally granted. An appropriate order follows.
ORDER AND NOW, this 23rd day of April, 2002, upon consideration of the amended motion of plaintiffs for class certification pursuant to Federal Rule of Civil Procedure 23 (Doc. No. 14), and defendant's response thereto (Doc. No. 15), for the reasons stated in the foregoing memorandum, it is hereby ORDERED that the motion is conditionally GRANTED.
Accordingly, it is FURTHER ORDERED that this lawsuit shall be conditionally maintained and shall proceed as a class action pursuant to Federal Rules of Civil Procedure 23(a) and 23(b)(2) for an injunctive class consisting of a class defined as "all persons who were participants in the United International Investigative Services ("UIIS") 401(k) Savings Plan from April 1, 1999 to December 7, 2001."
It is FURTHER ORDERED that this lawsuit shall also be conditionally maintained and shall proceed as a class action pursuant to Federal Rules of Civil Procedure 23(a) and 23(b)(3) for a damage class consisting of a class defined as "all persons who were participants in the UIIS 401(k) Savings Plan from April 1, 1999 to December 7, 2001."
It is FURTHER ORDERED that the conditional certifications herein are subject to review and reconsideration at any time upon reasonable notice and the right to be heard and will be reviewed and reconsidered at the time of any final adjudication of this action.
The following is FURTHER ORDERED:
• Notice of the pending class action shall be in the form attached hereto as Exhibit A; said form of notice satisfies the requirements of Federal Rule of Civil Procedure 23(c)(2) and due process;
• The notice shall be sent to all class members as herein defined via first class mail no later than May 31, 2002;
• The notice shall be sent to the last known address as contained in defendants' records;
• Defendants shall print, collate and mail the notice;
• Defendants shall pay for the cost of the preparation and mailing of the notice;
• Defendants shall give a list of names and addresses of all class members to plaintiffs' counsel;
• Plaintiffs' counsel shall monitor and verify the mailing of the notice, and within 30 days after its completion shall file an affidavit by one with first-hand knowledge certifying that the mailings have been sent and attaching thereto under seal a list of the names and addresses of those class members to whom notice was sent, along with a copy of the notice actually sent;
• Defendants shall provide a list to plaintiffs' counsel of the class members from whom notices were returned in the mail. Mailing of the notice shall include any secondary mailing to those members from whom notice was returned, after defendants take reasonable efforts to locate more recent addresses for said members.