In class actions, where individual members of a class are not easy to identify, notice to the class is often made by publication in a newspaper. This is, however, a prime example of the law lagging behind reality, where the print media are struggling to prop up their dwindling circulation figures.
But because only a tiny fraction of the American public actually subscribe to newspapers, notice by publication is virtually guaranteed to be ineffective. It is also insufficient due process.
Notice by publication, by the numbers
Let’s take USA Today as an example, since it has either the widest or second-widest circulation in the United States, and is the publication of choice for national class actions. According to Wikipedia, USA Today has a circulation of 1.8 million. According to census.gov, there are about 293 million households in the U.S. That means just .6% of American households subscribe to USA Today. Although, let’s be honest, as anyone who travels knows, a huge chunk of USA Today’s circulation is empty hotel rooms. And we can be pretty sure that, of those who do subscribe to USA Today or read it in their hotel rooms, most do not read the legal notices.
In other words, there is a better than 99% chance that service by publication in USA Today will be ineffective.
Now consider why notice by publication is usually attempted: the individual class members are not readily identifiable. In some cases, the reverse may also be true: individual class members may not be able to readily identify themselves. In a recent notice-by-publication class, a chief allegation in the complaint was that the debt collector did not identify itself when calling consumers. The fact that even a handful of consumers saw the notice in USA Today’s legal notices, and then realized they were members of that class, is a miracle.
Local newspapers are not much better. In my home state of Minnesota, for example, neither of the two major papers has a circulation greater than 10% of the households in the state.
In my mind, at least, this raises some serious concerns about the constitutionality of notice by publication.
Due process and notice by publication
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, where all class members are included unless they take action to opt out. If the person giving notice has reason to believe that it will be ineffective he or she must use other means.
Well, we have more than reason to believe service by publication will be ineffective. In fact, we can be virtually positive, at least as it is currently practiced. Does this mean notice (and service, for that matter) by publication should be eliminated? Possibly, but if the courts continue to allow it, they should look beyond newspapers and attempt to reach a more respectable percentage of the public.
Better notice by publication
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.
Incidentally, a simple class action website, without any attempt to advertise or promote it using the above techniques, is as likely to be viewed as a book without a bookstore to sell it.
Change—if any—must come from the courts
Since notice by publication must be approved by the courts, the courts must raise their standards if there is to be change. Attorneys for both sides will largely play to the standards set by the courts, especially since one side or the other may not actually want class members to come forward or opt out.
But change must come. Notice by publication in newspapers is based on the assumption that most people read the legal notices in particular newspapers. But that assumption is simply false. In reality, notice by publication is basically guaranteed to fail.