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among audiences of various media vehicles.
The results of this analysis are combined to
help determine notice plan adequacy and
effectiveness to reach the greatest practicable
number of class members. This ensures that a
sufficient number of the class will receive multiple
opportunities to be exposed to the notice, to see,
review, understand, and be reminded about it,
and to respond appropriately if they so choose.
Reaching the Class
Reach and frequency analyses and the planning
tools used to calculate these have become the
standard evaluations of notice programs, and have
been regularly accepted by courts. Many courts
have recognized and understood that a 75 or
80 percent reach is more than adequate. In 2010,
the Federal Judicial Center (FJC) issued the Judges’
Class Action Notice and Claims Process Checklist
and Plain Language Guide. The Guide states:
Notice Content and Plain Language Requirements
In an effort to ensure that potential class
members can easily read class action notices and
understand their rights, Fed. R. Civ. P. 23(c)(2)(B),
sets forth that in a class action certified under
Fed. R. Civ. P. 23(b)(3), “the notice must clearly
and concisely state in plain, easily understood
language:
1. the nature of the action;
2. the definition of the class certified;
3. the class claims, issues, or defenses;
4. that a class member may enter an
appearance through an attorney if the
member so desires;
5. that the court will exclude from the class any
member who requests exclusion;
6. the time and manner for requesting
exclusion; and
7. the binding effect of a class judgment on
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CAFA Notice
A study of recent published decisions
showed that the median reach calculation
on approved notice plans was 87%.
“[T]he lynchpin in an objective determination of the
adequacy of a proposed notice effort is whether
all the notice efforts together will reach a high
percentage of the class. It is reasonable to reach
between 70–95%. A study of recent published
decisions showed that the median reach calculation
on approved notice plans was 87%.” 35
Some have read these statements to mean the
70 percent is reasonable and any more would be
extraneous. When in fact it has been traditional
for class action media programs without any
individual notice to reach 80 percent or more of a
targeted class.
members under Rule 23(c)(3).”
The FJC has created several resources to assist
practitioners with creating legal notices that
satisfy these requirements. In collaboration with
legal notice experts, more than a decade ago the
FJC developed several illustrative examples of
how summary and long form notices should be
written. Today, these illustrative notices are still
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commonly referred to by attorneys, legal notice
experts and judges.
37
It is important that each notice concisely
and clearly delivers the information in plain,
easily understandable language so that class
members can read and comprehend the notice
effectively. This can be an art: taking complex
legal terminology from a detailed settlement
and accurately conveying it in a way that is easy
to understand so a layperson can comprehend
what their rights are and how they may need to
respond as a result.
If a class action settlement is filed in federal
court, Section 1715 of the Class Action Fairness
Act (CAFA) requires that each defendant provide
notice to “appropriate Federal and State officials”
when a proposed class action settlement is
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filed in court. Providing notice to officials often
involves the United States Attorney General,
the State attorneys general, and United States’
Territories attorneys general. The time-frame for
Enlisting a Legal Notice Expert
When determining how notice should be provided
to class members in a bankruptcy proceeding, a
qualified legal notice expert, who uses scientifically
proven methods to calculate reach and frequency,
should be consulted. This is true especially within
the context of a bankruptcy proceeding where the
court may not have much experience in reviewing
a proposed media notice plan.
In addition to designing a notice plan that will
satisfy the requirements of due process, legal
notice experts are experienced in providing
testimony in the form of declarations, depositions
and in-court appearances, resulting in court
approval of cases. Not only does this lift the
burden from counsel to determine what
constitutes adequate notice, but it also provides
a resource in the event of judicial inquisition or
objections to notice. An experienced expert will
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providing notice to officials is short: only 10 days
from filing the settlement. Arguably, defendants
who do not satisfy every component of the CAFA
notice requirements will be open to potentially
damaging consequences, including removal of
res judicata protection, compromising the finality
of the settlement and exposing defendants to the
risk of destroying an entire settlement.
have an extensive curriculum vitae listing their
experience as a court-approved legal notice expert,
author and presenter on the topic of legal notice.
In light of the Supreme Court’s decisions in
Daubert and Kummo, it is important to ensure
that a qualified expert is selected and relied
upon to calculate how to reach class members.
The Court set forth that an expert must use the
“same level of intellectual rigor that characterizes
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the practice of an expert in the relevant field.”
In performing the role of “gatekeeper,” a trial
judge must ensure that “an expert’s testimony
both rests on a reliable foundation and is relevant
to the task at hand. Pertinent evidence based
on scientifically valid principles will satisfy those
demands.” As a result, it is important to inquire
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with a notice provider whether they have a
qualified notice expert on staff.