The Epiq Angle

Effective Legal Notification in the Changing World of Consumer Class Action Cases

April 19, 2016

By Cameron Azari
Vice President, Epiq
Director of Hilsoft Notifications

When the Federal Judicial Center stated in a 2004 document that reaching 70 to 95 percent of the potential plaintiffs in a class action suit is a reasonable notice effort, it had no intention of declaring that 70 percent reach is the new standard for adequacy across the board. But that’s the way the statement has been interpreted. Twelve years later, lawyers who propose reaching out to more than 70% of a potential class are seen as wasteful.

Effective Legal Notification in the Changing World of Consumer Class Action Cases

Despite this new conventional wisdom, however, not every settlement is the same – and different cases require different reach plans. That 70 percent figure might be acceptable in a settlement with low payouts. But larger cases warrant larger efforts – such as the BP oil spill class action settlement, In Re: Oil Spill by the Oil Deepwater Horizon Oil Rig “Deepwater Horizon” in the Gulf of Mexico, on April 20, 2010, (“Deepwater Horizon”), which featured a notice campaign that reached at least 95 percent of adults in the Gulf Coast region.

Using Media in Class Action Legal Notification

The concept of duplication in media consumption (that is, when one person sees notices in multiple publications) means that there can be diminishing returns when adding media to a notice campaign. It may take 40 percent more media just to increase notice from 70 to 80 percent. While some might see this as a waste of money, there are advantages to adding media beyond just reaching new potential class members. Additional media will increase the number of times the average class member is exposed to the notice – and the more frequently someone hears a message, the more likely they are to respond to it.

Frequency in Class Action Legal Notification

This issue of frequency may have a lot to do with why response rates in consumer cases have dropped in recent years. Not long ago, media plans in class action cases had average frequencies of 3 or more. Now there are internet-only 70 percent media plans that have frequencies of less than 1.5. Some providers have even begun capping frequencies at one appearance of an ad for each user, for the life of the notice campaign. This ensures that no internet user will see a notice more than once.

For those attempting to reach potential class members, there are ways of working within the confines of a 70 percent plan – even one that uses frequency-capped banner notices. By using tactics like narrowly targeted internet banner ads, sponsored Google search listings, and shrewd social media/public relations strategies, due notice is still possible.

Cameron Azari

With more than 16 years of experience in the design and implementation of legal notification and claims administration programs, Cameron Azari, vice president of Epiq and director of Hilsoft Notifications, is a nationally recognized expert in the creation of compliant notification campaigns. For more information, contact Cameron directly at cazari@epiqsystems.com, or visit the Epiq website for more information.

Filed under: class action