Page 13 - A Practical Guide to Chapter11 Bankruptcy Publication Notice

Media Selection • Television – broadcast (network) or cable Media Planning and Measured Reach and Frequency
Individual notice is not always a viable television ads To satisfy the due process requirements methodologies to guide the billions of dollars
option to reach some or all potential class • Radio – local, satellite or national network established in Mullane and Eisen, legal notice of advertising placements seen today. In fact,
members depending on the accuracy and • Social Media – use of Facebook, Twitter or other experts use various advertising planning tools and advertising and media planning firms around
comprehensiveness of class member mailing outlets to publicize the settlement data sources to calculate the reach and frequency the world have long relied on audience data and
lists. When a significant percentage of a class is of the different media components of a given reach and frequency techniques: 90-100 percent
unknown, it is common to consult with a legal • Sponsored Search Listings – acquired on highly notice campaign. of media directors use reach and frequency
notice expert firm to design a media notice plan visited internet search engines, such as Google, planning; all of the leading advertising and
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to deliver adequate notice to the class. Beyond Yahoo! and Bing Reach and Frequency communications textbooks cite the need to
individual mailed notice, the typical media options • Informational Release – party-neutral press Reach is the estimated percentage of an audience use reach and frequency planning; and at
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for providing notice to class members include: release distributed to thousands of print, exposed to a notice, factoring in any duplication least 15,000 media professionals in 85 different

• Print Publication Notice – magazines, broadcast and online press outlets among people who may have been exposed more countries use media planning software. 29
newspapers, trade journals, business and • Public Service Announcement (PSA) – typically than once. Reach is typically measured against a Tools and Data Trusted by the Communications
specialty publications in a print, radio or television format specific target audience in order to ensure that the Industry and Courts
most efficient media is selected.
• Desktop Internet Notice – banner As new forms of media emerge and are used to Tools commonly used by experts in the field to
advertisements with a link to the case website communicate, this list will likely continue to grow. Frequency is defined as the estimated average analyze the reach and frequency of the media
number of times that those reached by a notice
• Mobile – banner advertisements via a mobile will have the opportunity to view a notice. Some portion of a notice program include:
ad network
people may see the notice more times than • GfK Mediamark Research & Intelligence, LLC
others and some fewer. (“MRI”) data –provides statistically significant
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readership and product usage data
Constitutional Due Process Requirements – Mullane and Eisen Although reach garners more attention, the two 31
measurements must be used and expressed • Alliance for Audited Media (“AAM”) statements
For class actions managed under Rule 23, the which is a mere gesture is not due process. The in tandem to be meaningful. For example, “the – certify how many readers buy or obtain copies
United States Supreme Court has provided means employed must be such as one desirous of proposed notice campaign is estimated to reach of publications
guidance that legal notice experts must follow actually informing the absentee might reasonably 80 percent of adults aged 18 years and older, an • comScore, Inc. – provides online media
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to satisfy due process. In Mullane, the Court adopt to accomplish it. The reasonableness, and average of 3.5 times,” or “the proposed notice planning data
established that notice in a legal proceeding hence the constitutional validity of any chosen campaign is estimated to reach 80 percent of 33
method may be defended on the ground that men who are aged 18-34 who smoked cigarettes • Nielsen Media Research – provides
it is, in itself, reasonably certain to inform those in the last 12 months, an average of 3.1 times.” It is broadcast (network) and cable television
‘‘But when notice is a person’s due, affected . . . .’’ 25 now customary for notice plans to be quantified in media planning data
process which is a mere gesture is not terms of both reach and frequency. Federal courts • Nielsen Audio – provides radio planning data. 34
due process.” Furthermore, in Eisen, the court provided that: have come to rely on these measurements in their
“[N]otice must be ‘reasonably calculated, assessment of the adequacy of notice plans. These tools together with demographic
breakdowns and other computer software
must be reasonably calculated to actually inform under all the circumstances, to apprise allow legal notice experts to determine the
affected parties of their rights in the proceeding. interested parties of the pendency of the Legal notice experts are not alone in using net (unduplicated) reach of a particular media
action and afford them an opportunity to reach and frequency planning. Virtually all
‘‘But when notice is a person’s due, process present their objections.’’’ 26 of the nation’s largest advertising agency campaign. The demographic breakdowns
media departments utilize, scrutinize and rely indicate how many people use each media
on independent, time-tested data and tools, vehicle and the computer software takes the
including net reach and de-duplication analysis underlying data and factors out the duplication

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