Published Article
Plain Language Primer for Class Action Notice
Kinsella Media, LLC produced this Plain Language Primer to provide judges and attorneys with guidelines for writing and formatting class action notices subject to Rule 23 of the Federal Rules of Civil Procedure.1
Kinsella Media is a nationally recognized firm specializing in media-based class action and bankruptcy notification programs in the mass tort, consumer and product liability arenas. The firm has developed and directed some of the largest and most complex national notification programs in the country. The scope of expertise includes notification programs for cases involving antitrust, bankruptcy, consumer fraud, mass tort and product liability litigation.
What is Plain Language?
As a result of the 2003 revisions to Rule 23 of the Federal Rules of Civil Procedure prepared by the Judicial Conference’s Committee on Rules of Practice and Procedure, Rule 23(c)(2) now requires class notices be written in “plain, easily understood language.”
Although the revisions to Rule 23(c)(2) focus entirely on language, plain language or “plain English” is more than just simplified language eliminating legalese, jargon and complex language. Plain language is an approach to communicating based on who the audience is and how best to deliver an understandable message.
As defined by practitioners, plain language is the
- “marriage of content and format”2 to create documents that can be understood by the widest possible audience
- “use of language stripped of archaic forms and vocabulary, aided by design, layout and typography of the text … [It] takes into account the empirical research of the past 30 years about how the mind works—how people read and assimilate information.”3
In a plain language document, the effective organization of information, presentation, design and layout are as important as clear and effective writing.
This primer explores the principles of plain language as applied to the development of notice documents. It focuses specifically on the implications of plain language requirements for structuring and writing both Summary and Long Form Notices.
Questions to Consider Prior to Drafting Any Notice
When drafting either a Summary or Long Form Notice, one must first consider:
- Who is the audience?
- What is the required as well as essential information a class member needs to know?
- What is the logical organization or flow of that information?
WHO IS THE AUDIENCE?
In writing legal notices, the demographics of the class members are important, but only to a point. In actuality, the education and comprehension levels of class members in most consumer, product liability, mass tort and employment cases vary so widely that notice must be written in the simplest conversational English without legal jargon, complex language or unwieldy grammatical structures.
A reading level of Grade 8 is desirable. However, when the majority of the class is composed of elderly or minimally educated individuals, comprehension and document format require even more rigorous simplification.
WHAT IS THE REQUIRED AS WELL AS ESSENTIAL INFORMATION A CLASS MEMBER NEEDS TO KNOW?
The revision to Rule 23 (c )(2)(B) requires the following:
“When ordering certification of a class action under Rule 23, includes notification programs for cases involving antitrust, bankruptcy, consumer fraud, mass tort and product liability litigation the court must direct appropriate notice to the class. The notice must concisely and clearly describe in plain, easily understood language:
- the nature of the action,
- definition of the class certified,
- the claims, issues, or defenses with respect to which the class has been certified,
- the right of a class member to enter an appearance through counsel if the member so desires,
- the right to elect to be excluded from a class certified under Rule 23 (b)(3), and
- the binding effect of a class judgment on class members under Rule 23(c)(3).”
However, these are only the minimum requirements for a long form notice. The long form notice should provide class members with all the information they may need to thoroughly understand the litigation and determine their participation in the proceeding. This would include information such as the full settlement terms, the claims process, attorneys’ fees and the like.
WHAT IS THE LOGICAL ORGANIZATION OR FLOW OF THAT INFORMATION?
Think in terms of a hierarchy of information. Start with the general and move to the more specific. A question and answer format is the most effective way to guide a reader through the notice information, particularly the long form notice. Anticipate a reader’s questions and organize the information to answer those questions. (See individual sections on publication and long form notice for suggested structure.)
Long Form Notice
Class action case law consistently upholds the Rule 23 requirement of direct notice to individuals who are readily identifiable. Unfortunately, the current state of direct mail notice undercuts class members’ ability to distinguish the notice from junk mail or comprehend its content once it is opened.
A focus group study conducted by the Federal Judicial Center (fjc) found participants were unfamiliar with class action notices and demonstrated only a very generalized knowledge of class actions. The challenge, therefore, is to draft a notice convincing people to read. According to the fjc, the first impression must “persuade the readers that they have a stake in the class action and that they will be able to comprehend the notice.”
DETAILED TABLE OF CONTENTS
A notice should contain a detailed table of contents to simplify organizational flow and make it easier for the reader to locate information of interest.
FIRST PAGE
In essence, the first page of the notice is an “executive summary” that captures the attention of the reader and provides an overview of pertinent information. The introductory page should:
- Have a clear headline, effectively communicating to whom the notice is directed.
- Explain briefly what the class action or settlement is about.
- Describe who is affected and what the class member might receive.
- Provide a summary table listing critical information, while leaving full details to the body of the notice.
Use the summary table to visually assist the class member in understanding legal rights and deadlines. Color-coding the table helps organize information of the same type. Columns in the summary table should describe:
- The action to be taken, such as filing a claim or exclusion form.
- The appropriate form to file (by color and name).
- Any deadline for filing.
- The consequences of each action.
- Forms that may be filed.
MAILING EXTERIOR
The exterior of a long form notice must grab the attention of the recipient. The exterior must clearly state in prominent type that the mailing is a legal notice from a court. A cut line or attention line should be used to enable the recipient to understand the notice may concern him. Two examples of cut lines follow:
- If you have synthetic stucco on your home you may receive benefits from a class action settlement.
- Please read this legal notice—you may be part of a class action settlement involving XYZ synthetic stucco.
OTHER MAILING EXTERIOR INFORMATION
Use standard flat or business envelopes and strive for polished presentation. Use the court’s name and return address on the outside of the envelope whenever permitted.
Public Notice
The publication notice recapitulates the most essential information in the long form notice. As such, a publication notice need not include all the details of the litigation or the settlement. A recommended structure includes:
- Headline(s)
- Introduction to what the litigation is about
- Class definition
- Sections (legal rights, product description, settlement terms)
- Subsections under legal rights (opting-out, objecting)
- Contact information
Eliminate non-critical details from the publication notice. Examples of non-critical information include the formal case caption as a headline, the names and addresses of the plaintiff and defendant counsel (unless required for a specific communication function), detailed instructions on the procedures for opting-out or objecting, and the details of the settlement and claims process.
HEADLINES
The headline is used to alert the reader that the notice may affect them. Advertisements have seconds to grab the attention of the reader and research shows headlines are read first. Keep them simple. To maximize exposure, use an overly inclusive headline encompassing a larger potential audience and allow the class definition to define the class membership parameters. For example:
If You Own a Home with Cedar Shingles Please Read this Legal Notice—It May Affect Your Rights
If You Own a Home as of June 5, 2002 with Real or Simulated Cedar Shingles Manufactured or Sold by Housetop Roofing and Supply Company Installed after January 1, 1989 Please Read this Legal Notice–It May Affect Your Rights
Unless a product is well known or carries the name of the manufacturer, most consumers will not necessarily know the product brand. Putting information that is too specific in the headline can be an impediment to involving the reader. In the example above, consumers will know if they have cedar shingles, but not necessarily know if they are real or simulated shingles, or who sold or manufactured them. Include the details about type of product, details of installation and the names of manufacturers in the text.
It is also important to never use a formal case caption as a headline in a publication or a long form notice. Potential class members are not perusing newspapers and magazines looking for legal notices that might affect them. The case caption is a reference for the judicial system. Headlines such as “If you have a breast implant…” “If you have an asbestos disease…” “If you purchased or took prescription diet drugs…” target the consumer personally, directly and quickly.
SECONDARY HEADLINES
The publication notice headline provides information essential to capturing the reader’s attention. A subheading can provide additional qualifying information possibly too complex and confusing if used in the headline. For example:
If You Purchased or Used an Aerosol Inhaler Please Read This Legal Notice, It May Affect Your Rights
Inhalers were Manufactured or Distributed by Schering-Plough Corp., Schering Corp., Warrick Pharmaceuticals Corp., Schering Laboratories and related companies
Content Characteristics Common to Both Types of Notices
NOTICE TEXT
Use descriptive headers to organize the document into manageable sections grouping related information. In product liability cases, for instance, graphics such as a picture or label of the product assist readers in determining if they are class members. Below are examples of descriptive headers used in Summary Notices for a product liability case:
- What is the Lawsuit About?
- Am I Covered by the Proposed Settlement? (Am I a Class Member?)
- What is (the Product)?
- How Do I Identify the Product?
USE THIS
What are My Rights?
AVOID THIS
What are the Terms of the Settlement?
The following are examples of descriptive headers used (in addition to the examples above) in long form notices:
- Why Should I Read This Notice?
- What is a Class Action Lawsuit?
- Who Represents Me?
- How can I Attend the Fairness Hearing?
Formatting Characteristics Common to Both Types of Notices: Typography and Space
TYPE
There are two kinds of type—serif and san serif. Serif is defined by its small strokes at the beginning and ending of each letter, which links one letter to another making the words and sentences easy to read. It is recommended for the text of the notice. San serif type is recommended for headlines and subheads.
FONT SIZE
If possible, font size should be at least 8 point. However, there is variation among font types and adjustments should be made whenever necessary. What is 12 point in one font may be as small as 10 point in another.
SPACING
White space around the notice and between sections is critical to readability. “Leading,” or the space between lines, is also important. Publishing notices with a tiny font size and little leading is a disservice to class members. Use the most readable type allowed by the notice format. The demographic must also be considered. If readers are elderly, for example, type size and leading should be increased.
PARAGRAPHS AND SENTENCES
Long blocks of copy and superfluous text discourage reading. Paragraphs should be concise, sentences of a reasonable length and words of few syllables. Complex sentences, especially in legal documents, may be traditional but are hard to understand. Use discretion and focus on readability.
EMPHASIZING TEXT
Use bullets, underlining and/or italics to emphasize key points. Never use all uppercase type for sentences or paragraphs—it is the most difficult type to read. (All caps can be used effectively in some heads and subheads.) Bolding, italics or initial caps are far more readable type treatments. For example:
IF YOU ARE ONE OF THE PERSONS DESCRIBED ABOVE, YOU MAY BE A MEMBER OF THE SETTLEMENT CLASS, AND YOU MAY BE ENTITLED TO PARTICIPATE IN AND/OR OBJECT TO THE FAIRNESS, REASONABLENESS AND ADEQUACY OF THE PROPOSED SETTLEMENT.
or
If You Are One of the Persons Described Above, You May be a Member of The Settlement Class…
or
If you are one of the persons described above, you may be a member of the settlement class…
or
If you are one of the persons described above, you may be a member of the settlement class…
Writing Publication and Long Form Notices in Plain Language
A consensus exists among plain language experts regarding the basic guidelines that make documents accessible and understandable.
USE POSITIVE LANGUAGE AND REDUCE NEGATIVES, PARTICULARLY DOUBLE NEGATIVES.
Positive language communicates a clearer message than negative language. For example, the following two sentences communicate the same message, but the positive language sentence is easier to understand.
“If you fail to timely file a claim, you will not participate in the settlement distribution.”
“You must file a claim by the deadline to participate in the settlement distribution.”
USE ACTIVE VOICE – USE PASSIVE VOICE SPARINGLY.
The active voice eliminates ambiguity and requires fewer words to express a thought. The subject of the sentence performs the action rather than being acted upon.
A Fairness Hearing will be held by the court on December 12, 2002.
The court will hold a Fairness Hearing on December 12, 2002.
OMIT SUPERFLUOUS WORDS.
Pare down sentences to the essential thought. Replace wordy phrases with simple words. For example:
Instead of Use
in order to to
subsequent to after
with regard to about
OMIT LEGAL JARGON.
In most circumstances, words such as “heretofore,” “pursuant to,” “null and void” and “herein” can be replaced with “before,” “following,” “void” and “here” without losing their meaning.
LIMIT DEFINED TERMS.
Sometimes a defined term can be helpful. For example, if there are multiple defendants, using the defined term Defendants (after they have been initially identified) is simpler and can save space, as well as eliminate repetition. In many instances, defined terms originating in the settlement agreement are unnecessarily incorporated into the notice and repeated. If the defined terms do not have a specific use in a particular document, exclude them.
PERSONALIZE THE NOTICE BY USING PERSONAL PRONOUNS. Address the notice to the reader using “you,” especially in the headline, to communicate that the message is intended specifically for that reader. The question and answer format personalizes the notice with questions like “What are My Legal Rights?” and “Do I Need to Take Action?”
AVOID NOMINALIZATION -- MAKE NOUNS INTO VERBS.
Nominalization expresses a thought as a noun requiring a supporting verb. When possible, use a verb instead of a noun. For example:
“If you made an application” reads better as “if you applied”
ELIMINATE REDUNDANT INFORMATION.
A simple, well-written notice gives the information once. Once provided, avoid repeating the names of multiple defendants, the web site, telephone number or other information.
USE PARALLEL CONSTRUCTIONS.
Use parallel construction in phrases, sentences and lists. Pay special attention to verb-tense agreement. “The purpose of the notice is to: (a) inform class members of the litigation, (b) outline the terms of the settlement, (c) explain the legal rights of class members, and (d) provide telephone and web site contact information to request the complete notice.”
INCREASE THE READABILITY OF CLASS DEFINITIONS.
The readability of the class definition is critical to effective notice Readability should be paramount when initially drafting or amending class definitions. The following examples demonstrate a traditional class definition and an alternative plain language version:
“All persons in the United States who purchased or used an aerosol inhaler manufactured or distributed by Shering- Plough Corporation, Shering Corporation, Warrick Pharmaceuticals Corporation, or any of their subsidiaries or Affiliates from September 20, 1997 through July 2, 2002 and their Representatives, successors, assignees and Subrogees.”
“All persons who purchased or used an aerosol inhaler from September 20, 1997 through July 2, 2002 manufactured or distributed by:
- Shering-Plough Corporation,
- Shering Corporation,
- Warrick Pharmaceuticals Corporation, or
- related representatives and companies.
Conclusion
Notice exists to inform class members of pending litigation and their legal rights. In far too many instances, the Summary and Long Form notices confuse rather than inform. Plain language documents provide clear and effective communication of complex and important information to individuals with basic education. Clear writing and effective presentation ensure understanding, promotes informed decision-making and advances due process.
1 This primer is adapted and expanded with permission from an earlier version published in the Class Action Litigation Report, Vol. 3, No. 20, pp. 688-691 (Oct. 25, 2002). © 2002 by The Bureau of National Affairs, Inc. (800-372-1033) http://www.bna.com.
2 Gail Dykstra, What is Plain Legal Language?, http://www.plainlanguageneework.org/Legal/lawdefn.html.
3 Cheryl Stephens, Address to the Wills and Estates Section, Canadian Bar Association (Nov. 27, 1990).