Traditional Notice Campaigns
In class action litigation, the law regarding identifying and providing notice to unnamed class members requires that counsel provide the “best notice practicable under the circumstances.” At the outset of the modern class action era, attorneys relied on the existing media and communication method to meet the “best notice practicable standard,” specifically, US Mail, print, television and radio. Over time, the courts became comfortable with a three-phased process still in use today and generally referred to as the Traditional Model:
- Use US Mail to notify known members of the class where an address is available.
- Purchase advertising space to publish notice in topical print media (e.g., magazines, newsletters, etc.) where the demographic characteristics of the publications circulation list closely matches characteristics of class members.
- Purchase advertising space in newspapers and on television and radio in geographic regions that contain class members.
From the outset, the traditional model experienced problems quantifying reach measurements. For example, it can be difficult to verify that the recipient of US Mail received, opened and read any of the notifications they received. The problem with speculative measurement is even more pronounced in print media, as no method exists for determining how many individuals noticed and read any given advertisement. Likewise, television and radio notifications present the same difficulty and often require multiple advertisements to run at multiple time slots, at a great expense to all parties involved, and without measurable results.
Given the difficulties in confirming notice through traditional notice campaigns, additional mailings and advertisements are often required. These difficulties are further perpetuated by the Court’s reluctance to proceed with class action settlements, damages awards and attorney fee payments until the Court is satisfied that the reach standards are met. With the lack of real time measurements available in traditional media, increased costs associated with additional notice and reach requirement standards can be incurred while measurements are being tabulated, even if reach standards have been met.
The recent decline in print media advertising, combined with sharp increases in Internet use has resulted a dramatic decrease in the use of traditional notice methods. This shift is further supported by new language proposed by the 2016 Advisory Committee is now recommending a significant change to Rule 23(c)(2)(b), that being the inclusion of “electronic means” as a viable notification. While the Committee, continues to list US Mail as a type of “best notice that is practicable,” the updated rule specifically lists “electronic means” as viable notification. Trends towards digital notice are likely to continue as access to digital media increases, thus ensuring judicial requirements for notice continue to be met.