Should Class Action Notice Requirements Be Changed? (Poll)

Following yesterday’s Lawyerist post criticizing current methods of class action notice by publication, which received some great coverage by Reuters, it got us wondering: is there even an appetite in the legal community for changes to the way class members are notified?


Currently, most class action notices are made by publication in print newspapers. But print newspaper circulation has been on a drastic decline for years now. The largest-circulation newspapers in the United States are read by—at most—1%-2% of households. An ad in the back of one of these papers can not be expected to be seen by many people.

Due process requires—at a minimum—meaningful notice before depriving someone of their property. Property includes the right to bring a legal claim, and so includes opt-out class actions…

On the publication theme, perhaps notice should follow the former readers of newspapers to blogs and websites. Advertisers have, and a legal notice is basically a form of advertisement. For example, service by publication using a one-month banner ad on any of the Top 100 blogs would probably reach a wider audience than USA Today. But that ignores the advantage of advertising on the internet: specific targeting.

Advertisers can reach just about everyone on the internet based on what they are interested in. People tend to complain about their problems and look for solutions to their problems online, on blogs, Facebook, Twitter, and many other websites. Well-optimized ad buys targeted to keywords related to the class action claims could reach a huge chunk of a class. And website analytics could quickly assess the effectiveness of the notice.

Is Sam right? Are current methods of class action notification—text-ad publication in the the legal notices section of national and local print newspapers—out of date? Might strategic use of the internet be a more effective method of notifying citizens of their legal rights?

Let us know what you think by taking our quick poll.

(Photo: http://www.flickr.com/photos/stinajonsson/3932774410/)

Lawyering Skills, Legal Ethics

  • http://gamepolitics.com Dan Rosenthal

    Sam/Aaron: Just because newspaper readership is on the decline does not make the medium itself an inadequate form of notice. If people choose not to purchase newspapers, they are choosing to exclude themselves from potential class notifications.

    A better argument (logically, not legally) is that class notifications in newspapers are inadequate because large populations of minority groups are traditionally economically unlikely to purchase newspapers, due to a lack of money and uncontrollable societal factors hindering spending on readership (not to mention literacy).

    The other thing that nobody seems to talk about, is that members of a class should not be forced to “buy in” to the class, whether that is purchasing a $.75 newspaper, or a $100 yearly subscription, or $50 a month internet access, or whatever. A notification scheme based on internet access would only be good in a narrow set of situations, such as those in which the claim involved internet access in the first place (For instance, the Google and Facebook privacy class actions, who by definition have the ability to notify the class effectively by emailing their users. I received such an email recently from Google, and it was effective. )

  • http://lawyerist.com/author/aaronstreet/ Aaron Street

    Dan,

    A few counter-points:
    1. You argue that notice-by-publication in specific newspapers is acceptable because people are aware that this is where notice occurs, and thus can choose to opt-out of all notices in general. I don’t think this is a decision that the general public makes.
    2. You argue notice-by-publication in specific newspapers is acceptable, but then say that notice-by-publication on the Internet would need to be limited to cases involving the Internet. Why? We don’t currently limit notice-by-publication to cases involving print media. Doesn’t the Internet have a broader reach across our population than any national newspaper?
    3. Your citation of notice you received from Google is great, but it isn’t an example of what’s at issue here. In your Google example, they knew who you were and how to contact you based on your use of Google products. This discussion is about how to notify unidentified class members through public notice.

  • http://gamepolitics.com Dan

    Sam: No, I’m not arguing that notice by publication in specific newspapers is acceptable. It provides inadequate notice, which I’ve pointed out above.

    What I’m saying is that the reason for the inadequacy does not lie in an inherent flaw of the medium, but rather external social issues that make the breadth of notice fundamentally inadequate.

  • http://gamepolitics.com Dan

    Similarly, with point 2, I’m not saying that internet is acceptable for internet-related claims and newspapers for newspapers — what I’m saying is that both are flawed mediums because you have to buy-in, but newspapers are less flawed because the buy-in is a cheaper price.

    My point about Google is precisely what you just said – they knew who I was. How can internet based notification be effective if they DON’T know who you are? (Answer: it can’t).