Three Elements of Effective Notice

Filed under Internet Based Class Action Noticing

When noticing a class action lawsuit, firms concentrate on meeting all necessary due process requirements of notice as set forth in Federal Rule of Civil Procedure 23 (a).    In the past, the primary method of satisfying these notice requirements was met, or attempted to be met, by a wide-spread print media campaign.  Times have changed, and with the explosion of the internet, the old methods of noticing just don’t apply. It is now incumbent upon counsel and judges to look at noticing from a different perspective.  What constituted adequate notice in the past does not work in today’s world.

In order to accomplish effective notice three key criteria must be met.

Reaching the Class

The class member twenty years ago was very different from the class member today.  People move faster, get their news and information on-line.  The old method of publishing notice in newspapers and magazines just does not reach the audience that it once did.  The courts for the most part have been silent on the issue requiring that notice reach the class members.  California, however, has strong case law regarding the need to actually reach the members of a class. In Cartt v. Superior Court 50 Cal.App. 3d 960, 974 (1975), the court stated that “The notice given should have a reasonable chance of reaching a substantial percentage of class members…”  More courts need to be shown the hard facts that notice methods need to change with the times. Further, more courts should be presented at the beginning case with data that would verify the adequacy of a good noticing plan, ensuring that the widest possible audience will be reached.

Get Their Attention

Effectively reaching the class member is only part of the process. Once the class members are located and a plan is in place to get the notice in front of them, it must be read by the class member.  Traditional printed notices are often in tiny print, placed on the back pages of a newspaper or magazine.  Because a class member picked up the Wall Street Journal, for instance, does not mean that they will actually read the notice contained inside.  If you are lucky enough that they actually do read the notice, the reader may be immediately put off by the legal terminology, and small, hard to read print.

The same goes for internet based noticing. Most internet based settlement notices are designed by offline marketing firms who are still using old conversion statistics in their new online campaigns (statistics from past marketing efforts used to design and implement current settlement notices). Using out-of-date base numbers results in a less than effective class action notice plan.

Internet based marketers have access to resources which are updated hour-by-hour, about where a typical class member is looking for their daily news, and how to best position a settlement notice directly within the media they’re using to get their news – giving them the ability to either opt-in or to pass, and truly satisfying due process.

The Notice Must be Understandable to the Class Member

According to the new “plain language” amendment to Federal Rule of Civil Procedure 23(c)(2) the notice must be in clear language and easily understood. It must be kept in mind that notices need to be understandable to people will all levels of education.  If the reader can’t get through the legal terminology they will not read on, and once you have lost the reader, you can assume you have lost them for good.

An easy to read, socially inviting website, combined with banner ads that match the message on the website, draw the class member in to read more – explaining the lawsuit in a language they can easily understand. Plus, web-video can be used to offer a friendly explanation of the case.