Lawyers and judges regularly look to the “totality of the circumstances” or overall “reasonableness” when determining the rights and responsibilities of an individual. Yet, when faced with the specter of determining the due process rights of a multitude of class members, we regularly rely on the least common denominator, the easiest recognizable metric (i.e., the overall reach percentage) as the single indicator of whether or not a media-based notice plan should be considered “adequate” in the eyes of the law.1
Due to seismic changes in the way the average individual consumes media today, we must strongly consider moving away from a judicial inquiry based primarily on reach percentage and instead rely on a more holistic — and realistic — assessment of a media plan’s efficacy to truly provide “the best notice practicable.” 2
Measuring the overall reach percentage of a print-based notice plan is rather straightforward. Guided by high-powered software, subscription services and other algorithms, reach percentage can be calculated in a matter of minutes, if not sooner. However, when one needs to calculate the reach of a print media plan in conjunction with a digital-based notice plan, calculations become much more difficult and often, less reliable.
The inability of media and class action claims administration professionals to quickly and precisely determine a reach percentage when both digital and traditional print media are utilized illustrates one of the reasons why the use of reach percentage is an increasingly antiquated method for determining the adequacy of a class action notice program.
Using a “totality of the circumstances” test, as to the adequacy of a multimedia notice program would yield a system that takes into account the reality of the current media landscape, even if it changes the vocabulary to which we’ve become accustomed. This is of increasing importance given that the average consumer now relies on multiple mediums to consume their media. For instance, 50 percent of the public now cites the Internet as a main source for national and international news, still below television, but far above newspapers and radio. 3
We need not rely solely on academic studies to know that the paradigm of our media consumption has shifted, and it’s not only from traditional print media towards digital media; social media is now part and parcel of the average American’s daily experience as well.
Consider this: Have you used your smartphone to share an update while you were waiting for a colleague to arrive? Have you read a story that a friend had posted while you rode the elevator up to your office or from your tablet in the comfort of your family room? Have you ever shared a tweet or checked some photos on Facebook while you were in the salon?
Now contrast these inquiries and consider how many times you purchased a traditional news magazine over the past six weeks in order to keep up on current events? Did you read the entire copy of USA Today that somehow always shows up at the entrance to your hotel room? How about that People magazine with the crinkled cover sitting on the side table in the waiting room of your child’s orthodontist office?
The fact is that we are consuming more and more media via our smartphones, computers and tablets. U.S. homes have more than a half-billion Internet-connected devices and the number of connected devices per U.S. Internet household has grown to 5.7, up from 5.3 devices just a few months ago. 4 It has also been reported that we have reached a point in our history where there are more mobile devices than there are people on Earth. 5
This all begs the question: Why do we systematically rely on print as the cornerstone of most class action notice plans? At this point, we might as well be notifying class members in Sanskrit written on parchment.
A well thought out holistic media plan that is designed in the same manner that Madison Avenue designs their very best plans for their very best clients is not susceptible to the easy analysis of the reach percentage. Yet, time and again, successful advertising campaigns — as opposed to class action notice campaigns — are run without clinging to the antiquated concept of reach analysis.
Moreover, digital advertising campaigns are much more cost-effective than their traditional print media counterparts and therefore do not dilute class member recoveries to the same extent as expensive print campaigns. Likewise, digital media allows laser-targeting of the desired audience members and are typically more customizable to the particular class demographics at issue in the underlying suit. 6
The time has come for class action attorneys and judges overseeing class action settlements to embrace the best practices and latest methodologies of the advertising world, a world that is digital and, increasingly, social.
After all, mimicking advertising's latest methodologies is what class action practitioners did when we originally came to rely upon reach analysis in notice plans so many years ago. However, advertising methodologies are not static and, unfortunately for class members, lawyers are seldom early adopters of new technology. Instead of digging in and reflexively defending a dying system, we must embrace the fact that multiple mediums — including digital, print and social media — are more valuable than the sum of their parts.
We must understand that new notice experts, with new qualifications and a new vernacular, will be the foundation of this new system. And, while measuring the utility of each media is not yet an exact science — much less our ability to "de-duplicate" the audience between the varying mediums — this alone is not a reason to avoid using a comprehensive, multichannel notice campaign; it certainly has not deterred advertising media executives from using every trick of the trade at their disposal.
In explaining why reach percentage should not be the ultimate expression of an advertising campaign’s effectiveness, it has been noted that “[m]easurement is supposed to make things better, but because numbers give people something absolute and concrete, there is no room left for the value that measurements miss. When the value of content comes down to the numbers, measurements can seem precise, but they’re likely not accurate.” 7
For example, how do we properly account for the added exposure a digital banner ad provides a traditional print campaign? What about each time a notice is shared and re-shared on social media? What is the value of the collective awareness that exposure to multiple channels creates?
These items are not easily measured by reach analysis, but they are certainly measurable by relying on a new breed of digital and social media experts. Frankly, given our new media paradigm, we should collectively question whether notice by print alone actually comports with the mandates of Rule 23.
In discussing digital advertising, Sarah Green recently wrote on the Harvard Business Review blog: “It’s more convenient delivery and more customizable, too. And now advertisers can also track how effective their creative is! With all of these improvements, a digital ad should actually be worth more to an advertiser than a print ad.” 8 Well, shouldn’t a digital notice campaign be more worth more too?
- By Steven Weisbrot, Angeion Group
Steven Weisbrot is an executive vice president at Angeion Group, where he designs and implements class action notice and claims administration plans.
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.
1. “The lynchpin in an objective determination of the adequacy of a proposed notice effort is whether all the notice efforts together will reach a high percentage of the class. It is reasonable between 70 to 95 [percent].” Federal Judicial Center’s Judges’ Class Action Notice and Claims Process Checklist And Plain Language Guide 2010 [Return to Text]
2. "For any class certified under Rule 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. The notice must concisely and clearly state in plain, easily understood language ..." Federal Rule of Civil Procedure 23(c)(2). [Return to Text]
4. NPD Group Connected Intelligence, Connected Home [Return to Text]
6. These campaigns provide certain targeting and control capabilities not available with traditional print medial such as frequency capping and geo-location targeting via IP addresses. [Return to Text]