Time To Allow More Streamlined Class Action Notice Formats
Adapting Short Form Notice Requirements To Accommodate Today's Fast-Paced Society
Law360 (July 20, 2021, 5:14 PM EDT) –– The content requirements for class notice established by Federal Rule of Civil Procedure 23 and the fourth edition of the Manual for Complex Litigation, as well as relevant state rules and codes, were last updated in 2018 to accommodate the proliferation of the internet and emerging methods of communication.
While the 2018 amendments remain applicable and reasonable for a long-form or detailed notice, I would argue that given today's fast-paced, "no time to read" world, these content requirements are inappropriate for short-form notices. 2021 raises the question: Is it necessary to include all required content in a short-form or summary notice?
Over the past decade — and notably, over the last year — there have been significant changes in the way we communicate and receive information. In developed countries, technology adoption is soaring.
People expect quick and easy communication, as indicated by the spread of the internet acronym TL;DR, meaning "too long; didn't read." This article provides four arguments in support of shorter short-form notices ― after all, "short" is the name of the game.
1. Courts have already accepted some simplified notices.
Courts have recognized the need to accommodate technological advancements in how we communicate with class members, which has already resulted in shortened notices. As of Dec. 1, 2018, Rule 23 stipulates that best notice may be "by one or more of the following: United States mail, electronic means, or other appropriate means."
"Electronic" or "other appropriate means" may include emails, text messages and other electronic communications to come, as well as digital banner notices, which have become the foundation for notice programs designed to reach unknown consumer class members.
Courts today accept digital banner notices using a short, attention-getting headline with a direct link to the case website. After clicking through to the case website, class members have access to all of the information they need about the case, including the long-form or detailed notice. See image 1 for a sample of a short-form digital banner notice.
Image 1 - Sample short-form banner ad
Courts have also approved radio and television notices that are designed to communicate a basic 15-, 30- or 60-second message. A sample 30-second broadcast script may consist of content such as:
If you purchased DRUG X, you may qualify to receive benefits in a class action settlement. To find out if you qualify for benefits in the DRUG X settlement, go to [website address] or call [toll-free number]. That's [website address] or call [toll-free number]. This message paid for by [ad sponsor].
If court-approved digital banner and broadcast notices do not include all required information, why must other short-form notices, such as publication and postcard notices?
Image 2 - Sample standard publication notice
2. Advertising has always supported the concept of "less is more."
As an advertising major, I recall "KISS" — "keep it simple, stupid" — being preached in my creative writing classes. One of the first rules in designing a print ad is: Don't say too much.
Content should be limited to one key message, and your ad should have a lot of empty or white space. White space is just as important as the copy, because it makes the ad more visually appealing and invites the reader in.
Basically, a print ad should include a catchy and simple headline and subheading, brief and clear copy, eye-catching and relevant images, and an easy call to action. Yet, the standard class action publication notice does quite the opposite. See image 2, to the right, for an example.
Publication summary notices overload content, provide very little white space, and more often than not, do not include an image. Wouldn't it be best practice for these short-form notices to observe the conventions of effective print ad design to more closely resemble the mainstream media that consumers have grown accustomed to?
3. Class members have immediate access to detailed information.
When I started in the legal notice industry over 20 years ago, case websites and email notice were nonexistent. Class members received case information by way of a traditional mailed or published notice, or through an inquiry to the call center, if necessary.
Case websites and email notice were irrelevant, because only 1% of U.S. adults had broadband internet access in 2000. But 77% have broadband access today.
At that time, it was necessary for a summary notice to present all of the required information, because if it didn't, the only way class members could learn about their due process rights and options would be by requesting that a long-form notice be snail-mailed to them, or by calling the case-established toll-free telephone line.
Unlike then, today we have access to information anywhere, at any time. Smartphone ownership increased from 35% in 2011 to 81% in 2019, and 37% of U.S. adults say they mostly use a smartphone when accessing the internet.
Basically, we have a gateway to information at our fingertips at all times, even while on the go. Consequently, why bombard class members with so many details?
Shouldn't a summary notice focus on simply capturing the attention and interest of class members, and providing the means to learn more if they so desire? Shouldn't class notice adapt for today's TL;DR society?
4. COVID-19 has normalized QR codes, another means for prompt case fact retrieval.
The COVID-19 outbreak has taken technological advancements a step further, as QR codes, or quick response codes, have become mainstream. Since the start of the socially distant, "don't touch" pandemic, these black and white square patterns can be found everywhere, particularly in the restaurant industry.
To reduce exposure levels, QR codes have come to replace restaurant paper menus. Patrons simply hold their smartphone camera over the displayed QR code until a link appears.
The link then directs the patron to the desired website with the online menu. As of September 2020, nearly 47% of U.S. and U.K. consumers agreed that they had noticed an increase in QR code usage since COVID-19 shelter-in-place orders began in March 2020.
With society's acclimation to this new information resource, we should see more of its usage in class communications too. By way of a QR code, printed summary notices can offer class members prompt retrieval of the case facts, similar to a banner ad.
The information is there for a class member to retrieve. They don't need to rifle through tiny print, wait for snail mail, or sit on the phone. A simple click gets them everything they need to know.
It's time to take the next step.
Thanks to the Federal Judicial Center's illustrative forms of class action notice, we've come a long way since the pleading style notices of the 20th century. An example of a pleading style notice is provided in image 3 below.
Image 3 - Sample pleading style notice
However, it's clear that we need to continue to adapt and evolve content requirements. The FJC model notices were developed in 2002, at the request of the Subcommittee on Class Actions of the U.S. judicial branch's Advisory Committee on the Federal Rules of Civil Procedure, to guide how the required information was presented in terms of the design and layout of a notice ― and what they did, as seen in image 4 below, was quite an improvement.
Image 4 - FJC model publication notice
But the FJC model notices came at a time when we did not have access to the internet like we do today. It's time we communicate in a more immediate, attention-getting way.
Summary notices can and should take a cue from digital short-form notices. I would argue that a notice should be recognized as due process compliant if and when the notice clearly provides a case website address and/or QR code to facilitate immediate access to all the required information — i.e., a long-form notice. See image 5 below for an example.
Image 5 - Proposed sample publication notice
The Rule 23 amendments of 2018 advanced class notice by acknowledging and accepting electronic methods of communication as compliant, but we have yet to address changes in the actual content or message being communicated.
In other words, the "how" has been established, but the "what" is still open for debate. It's time for us to consider whether we are communicating in a way that is relevant to today's fast-paced, TL;DR society.
This article was originally published by Law360.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
 Fed. R. Civ. P. 23(c)(2)(B), as amended.
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