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In today’s world of on-demand media, consumers are customizing their media usage to fit their lifestyles. As a result, notice campaigns have had to adapt and integrate these preferences. It’s now all about just-in-time media—how you want it, where you want it—from streaming radio, to news feeds you select on RSS, to Facebook, to shopping online or on mobile, and texting on your Smartphone.
As a result, practitioners increasingly will see modern notice programs incorporate social media, banner advertising, opt-in text messaging, mobile websites and email as standard components. Media and communication channels seem almost limitless and as a result, courts expect a much greater level of sophistication in the design, dissemination, and reporting accuracy of legal notice programs.
What does this mean? Special expertise is required to avoid notice pitfalls and to plan and implement a best practicable notice program to ensure that your settlement is approved.
The media landscape has changed more in the past ten years than it has in the last 50. There are now four generations of workers who are active consumers, all with distinctly different media habits and preferences. What’s more, Americans now tend to use multiple media channels and tend not to stay with one medium for long. Reaching certain populations requires more media outreach now than it ever has before because there are more outlets and each is delivering a smaller audience.
What does this mean? A wide range of media must be employed to reach many target audiences now. The resulting notice costs can be considerable. This is partly due to divergent, generational media considerations, and predominantly to the fact that Americans, across all demographics, have become media grazers.
Media planners building cost efficient programs must spend budgets across a wider range of outlets in order to meet judicially articulated legal notice requirements. Despite considerable media costs, there pressure to provide low-cost notice solutions. Balancing expense and reasonability are, fundamental to the process. However, administrators or agencies unfamiliar with the syndicated media research, calculations and accepted models applied to Rule 23, might unknowingly build a plan which seems inexpensive, but overstates the percentage of a class reached by such a program. Legal notice programs using non-expert tools and methods that fail to adhere to recognized legal standards—both for performance and methodology—simply to save money, can be disastrous.
The Due Process Clause of the Fourteenth Amendment entitles members of a class action to receive notice reasonably calculated to inform them of their rights and proceedings. (1) For any class certified under Fed. R. Civ. Pro. 23(b)(3), the court must direct to class members the ‘‘best notice practicable’’ under the circumstances, including individual notice to all members who can be identified through reasonable effort. See Fed. R. Civ. Pro. 23(c)(2).
Though Rule 23(c)(2) seems to allow for considerable flexibility, judicial approval of notice campaigns is anything but automatic, especially within the last few years. As the legitimacy of the class action mechanism rests on the ability to ensure that class members are notified of their rights, the vast majority of courts have been careful to analyze the quality, methodology, and effectiveness of notice campaigns—requiring a high level of detail in testimony provided by notice experts. Fed. R. Civ. P. 26(a)(2) requires parties to disclose the identity of any expert witness they may use at trial through a written report.
The Written Report Must Contain:
For the purpose of legal notice, courts have employed an exacting and complex model called Reach and Frequency. Net reach is the average percentage of net individuals exposed to a notice program. Net reach attempts to eliminate duplication and to count each person only once, no matter how many media channels that person may use. Frequency is the average number of times a person has the opportunity to see a message.
The importance of a correct calculation of reach and frequency provided by a trained media expert is underscored in the recently published Federal Judicial Center’s Judges Class Action Notice and Claims Process Checklist where it cautions, ‘‘Claims administrators are often accountants by training and may lack personal knowledge or the training to conduct reach analyses.”(2)
The calculation of reach and frequency requires the use of sophisticated and proprietary nationally syndicated data and software. Practitioners should be cautious because not all advertising and media agencies are skilled or experienced in calculating a net reach and frequency model that courts have now come to expect. In fact, agencies use a host of different media models to measure performance based on their core business, i.e.,
direct marketing, online, social media, etc.
Learn more about Heffler’s in-house Notice Media Expert, Jeanne C. Finegan, APR.
(1) See Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 70 S. Ct. 652, 94 L. Ed. 865 (1950).
(2) See FJC Notice Check List, Judges’ Class Action Notice and Claims Process Checklist, and Plain Language Guide, p.3, http://www.fjc.gov/public/pdf.nsf/lookup/NotCheck.pdf/$file/NotCheck.pdf . (‘‘Are the reach calculations based on accepted methodology? An affiant’s qualifications are important here.. . . Claims administrators are often accountants by training and may lack personal knowledge or the training to conduct reach analyses.”)