Page 12 - A Practical Guide to Chapter11 Bankruptcy Publication Notice

Media Selection • Television – broadcast (network) or cable
Individual notice is not always a viable
option to reach some or all potential class
members depending on the accuracy and
comprehensiveness of class member mailing
lists. When a significant percentage of a class is
unknown, it is common to consult with a legal
notice expert firm to design a media notice plan
to deliver adequate notice to the class. Beyond
individual mailed notice, the typical media options
for providing notice to class members include:
• Print Publication Notice – magazines,
newspapers, trade journals, business and
specialty publications
• Desktop Internet Notice – banner
advertisements with a link to the case website
• Mobile – banner advertisements via a mobile
ad network
Constitutional Due Process Requirements – Mullane and Eisen
For class actions managed under Rule 23, the
United States Supreme Court has provided
guidance that legal notice experts must follow
to satisfy due process. In Mullane, the Court
established that notice in a legal proceeding
‘‘But when notice is a person’s due,
process which is a mere gesture is not
due process.”
must be reasonably calculated to actually inform
affected parties of their rights in the proceeding.
‘‘But when notice is a person’s due, process
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Media Planning and Measured Reach and Frequency
television ads
• Radio – local, satellite or national network
• Social Media – use of Facebook, Twitter or other
outlets to publicize the settlement
• Sponsored Search Listings – acquired on highly
visited internet search engines, such as Google,
Yahoo! and Bing
• Informational Release – party-neutral press
release distributed to thousands of print,
broadcast and online press outlets
• Public Service Announcement (PSA) – typically
in a print, radio or television format
As new forms of media emerge and are used to
communicate, this list will likely continue to grow.
which is a mere gesture is not due process. The
means employed must be such as one desirous of
actually informing the absentee might reasonably
adopt to accomplish it. The reasonableness, and
hence the constitutional validity of any chosen
method may be defended on the ground that
it is, in itself, reasonably certain to inform those
affected . . . .’’ 25
Furthermore, in Eisen, the court provided that:
“[N]otice must be ‘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.’’’ 26
To satisfy the due process requirements
established in Mullane and Eisen, legal notice
experts use various advertising planning tools and
data sources to calculate the reach and frequency
of the different media components of a given
notice campaign.
Reach and Frequency
Reach is the estimated percentage of an audience
exposed to a notice, factoring in any duplication
among people who may have been exposed more
than once. Reach is typically measured against a
specific target audience in order to ensure that the
most efficient media is selected.
Frequency is defined as the estimated average
number of times that those reached by a notice
will have the opportunity to view a notice. Some
people may see the notice more times than
others and some fewer.
Although reach garners more attention, the two
measurements must be used and expressed
in tandem to be meaningful. For example, “the
proposed notice campaign is estimated to reach
80 percent of adults aged 18 years and older, an
average of 3.5 times,” or “the proposed notice
campaign is estimated to reach 80 percent of
men who are aged 18-34 who smoked cigarettes
in the last 12 months, an average of 3.1 times.” It is
now customary for notice plans to be quantified in
terms of both reach and frequency. Federal courts
have come to rely on these measurements in their
assessment of the adequacy of notice plans.
Legal notice experts are not alone in using
reach and frequency planning. Virtually all
of the nation’s largest advertising agency
media departments utilize, scrutinize and rely
on independent, time-tested data and tools,
including net reach and de-duplication analysis
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methodologies to guide the billions of dollars
of advertising placements seen today. In fact,
advertising and media planning firms around
the world have long relied on audience data and
reach and frequency techniques: 90-100 percent
of media directors use reach and frequency
planning; all of the leading advertising and
27
communications textbooks cite the need to
use reach and frequency planning; and at
28
least 15,000 media professionals in 85 different
countries use media planning software. 29
Tools and Data Trusted by the Communications
Industry and Courts
Tools commonly used by experts in the field to
analyze the reach and frequency of the media
portion of a notice program include:
• GfK Mediamark Research & Intelligence, LLC
(“MRI”) data –provides statistically significant
30
readership and product usage data
31
• Alliance for Audited Media (“AAM”) statements
– certify how many readers buy or obtain copies
of publications
• comScore, Inc. – provides online media
32
planning data
33
• Nielsen Media Research – provides
broadcast (network) and cable television
media planning data
• Nielsen Audio – provides radio planning data. 34
These tools together with demographic
breakdowns and other computer software
allow legal notice experts to determine the
net (unduplicated) reach of a particular media
campaign. The demographic breakdowns
indicate how many people use each media
vehicle and the computer software takes the
underlying data and factors out the duplication