Considerations For Class Action Notice Brand Safety

In the recent wake of digital brand ads for Johnson & Johnson, Nestle, AT&T, Walmart, and Procter & Gamble appearing next to deplorable content [1], brand safety and ad fraud are hot-topic issues that can tar brands in the digital environment — and these issues also extend to class action notice.

Without brand safety, validation and transparency, none of the parties or the court will know where the ads actually appeared, on how many sites or if humans actually viewed the ads. Yet many settlement administrators are overlooking this 800-pound gorilla.

Media programs that fail to employ brand safety measures, including third-party fraud monitoring, transparent audience validation and proof of performance can put your notice program at risk.

Brand safety is an approach that can be used in online advertising to ensure that digital ads purchased through “programmatic” computerized auctions will not appear in a context that is toxic, (e.g., adult content, taboo subjects (unusual lifestyles), drugs, alcohol, violence, hate, fake news, incentivized manipulation of measurement (bots), and malware).

There is one big reason why you should care about brand safety: If a significant percentage of your planned impressions are stolen through ad fraud (incentivized manipulation by bots or botnets) or because of poor viewability, it can decrease a notice program’s human reach,
which will lead to limited awareness, and it will have a negative impact on due process.

In today’s digital ecosystem, the increasing dependence on programmatic media buying, using an auction process known as real-time bidding, presents a challenge to brand safety. It’s true there are benefits to programmatic media buying: reaching audiences at scale while using efficient pricing, a wealth of consumer behavior data, and advanced algorithms to precisely target audiences. However, there is also a downside: lack of transparency (data gathering, vetting, platforms used and where ads are actually being served), ad fraud, viewability (are the ads visible to a human?), or toxic environments.

Practitioners need to be aware of these complexities as they can affect response rates, brand reputation, and due process. Effective, due process notice ensures that the settlement will not be subject to collateral attack and will be given res judicata effect. Finally, due process notice will dissuade or defeat objectors who will attack the adequacy of the settlement based upon inadequate notice.

Programmatic Media Buying

A programmatic media-buying approach requires very little human supervision. It’s easy for a notice administrator to adopt a simplistic approach to buy targeted impressions and walk away until the end of the program. This is playing out in a number of recent expert declarations where networks are not disclosed and only bulk impressions and broad-stroke targeting definitions are reported to the court. But practitioners need to ask how many humans actually saw these ads? It’s a stunning notion that programmatic legal notice campaign ads could possibly appear on a porn site or hate site — it’s already happened to a number of big brands. Without brand safety measures in place, a notice program could easily appear in a toxic environment, without the parties’ knowledge. Moreover, without brand safety in place, due process and response rates can be negatively impacted, e.g., impressions gobbled up by bots fail to reach humans (class members) at all.

As background, programmatic refers to an online media-buying approach that is automated via computer software. But the technology that affords the granular targeting and rapid deployment of ads also create a vulnerability to ad fraud, which may include.

Jeanne Finegan
Jeanne Finegan, APR, is the Chief Media Officer of HF Media LLC, and has more than 25 years of communications and advertising experience and is a distinguished legal notice and communications expert. During her tenure, Jeanne has planned and implemented hundreds of high-profile, complex legal notice communication programs. She is a recognized notice expert in both the United States and in Canada, with extensive international notice experience spanning more than 140 countries and over 40 languages.

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