Page 15 - A Practical Guide to Chapter11 Bankruptcy Publication Notice

among audiences of various media vehicles. CAFA Notice
The results of this analysis are combined to A study of recent published decisions
help determine notice plan adequacy and showed that the median reach calculation If a class action settlement is filed in federal providing notice to officials is short: only 10 days
effectiveness to reach the greatest practicable on approved notice plans was 87%. court, Section 1715 of the Class Action Fairness from filing the settlement. Arguably, defendants
number of class members. This ensures that a Act (CAFA) requires that each defendant provide who do not satisfy every component of the CAFA
sufficient number of the class will receive multiple “[T]he lynchpin in an objective determination of the notice to “appropriate Federal and State officials” notice requirements will be open to potentially
opportunities to be exposed to the notice, to see, adequacy of a proposed notice effort is whether when a proposed class action settlement is damaging consequences, including removal of
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review, understand, and be reminded about it, all the notice efforts together will reach a high filed in court. Providing notice to officials often res judicata protection, compromising the finality
and to respond appropriately if they so choose. percentage of the class. It is reasonable to reach involves the United States Attorney General, of the settlement and exposing defendants to the
between 70–95%. A study of recent published the State attorneys general, and United States’ risk of destroying an entire settlement.
Reaching the Class decisions showed that the median reach calculation Territories attorneys general. The time-frame for

Reach and frequency analyses and the planning on approved notice plans was 87%.” 35
tools used to calculate these have become the Some have read these statements to mean the
standard evaluations of notice programs, and have 70 percent is reasonable and any more would be
been regularly accepted by courts. Many courts extraneous. When in fact it has been traditional Enlisting a Legal Notice Expert
have recognized and understood that a 75 or for class action media programs without any
80 percent reach is more than adequate. In 2010, individual notice to reach 80 percent or more of a When determining how notice should be provided have an extensive curriculum vitae listing their
the Federal Judicial Center (FJC) issued the Judges’ targeted class. to class members in a bankruptcy proceeding, a experience as a court-approved legal notice expert,
Class Action Notice and Claims Process Checklist qualified legal notice expert, who uses scientifically author and presenter on the topic of legal notice.
and Plain Language Guide. The Guide states: proven methods to calculate reach and frequency, In light of the Supreme Court’s decisions in
should be consulted. This is true especially within Daubert and Kummo, it is important to ensure
the context of a bankruptcy proceeding where the that a qualified expert is selected and relied
court may not have much experience in reviewing upon to calculate how to reach class members.
Notice Content and Plain Language Requirements a proposed media notice plan. The Court set forth that an expert must use the
In addition to designing a notice plan that will “same level of intellectual rigor that characterizes
In an effort to ensure that potential class members under Rule 23(c)(3).” 39
members can easily read class action notices and The FJC has created several resources to assist satisfy the requirements of due process, legal the practice of an expert in the relevant field.”
understand their rights, Fed. R. Civ. P. 23(c)(2)(B), practitioners with creating legal notices that notice experts are experienced in providing In performing the role of “gatekeeper,” a trial
sets forth that in a class action certified under satisfy these requirements. In collaboration with testimony in the form of declarations, depositions judge must ensure that “an expert’s testimony
Fed. R. Civ. P. 23(b)(3), “the notice must clearly legal notice experts, more than a decade ago the and in-court appearances, resulting in court both rests on a reliable foundation and is relevant
and concisely state in plain, easily understood FJC developed several illustrative examples of approval of cases. Not only does this lift the to the task at hand. Pertinent evidence based
language: burden from counsel to determine what on scientifically valid principles will satisfy those
how summary and long form notices should be constitutes adequate notice, but it also provides demands.” As a result, it is important to inquire
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1. the nature of the action; written. Today, these illustrative notices are still a resource in the event of judicial inquisition or with a notice provider whether they have a
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2. the definition of the class certified; commonly referred to by attorneys, legal notice objections to notice. An experienced expert will qualified notice expert on staff.
experts and judges.
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3. the class claims, issues, or defenses;
It is important that each notice concisely
4. that a class member may enter an and clearly delivers the information in plain,
appearance through an attorney if the easily understandable language so that class
member so desires; members can read and comprehend the notice
5. that the court will exclude from the class any effectively. This can be an art: taking complex
member who requests exclusion; legal terminology from a detailed settlement
and accurately conveying it in a way that is easy
6. the time and manner for requesting to understand so a layperson can comprehend
exclusion; and what their rights are and how they may need to
7. the binding effect of a class judgment on respond as a result.

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