Published Article
Class Notice and Claims Administration
Katherine Kinsella and Shannon Wheatman1
Much has been written and discussed about the negative aspects of the American class action model.2 Indeed, the US class action device is far from perfect, and other countries are taking steps to avoid the abusive aspects of class actions in their construction of statutes to govern collective actions. There is, however, an important aspect of the US model that is clearly worth consideration. Over the past 70- plus years, federal and most state laws have evolved safeguards to protect the due process rights of class members. Due process rights are fundamentally at issue in US class actions when notice is required to inform class members about class certification and/or settlement and when a judgment has awarded class- wide relief.
The emergence of a global economy now requires US courts to face the dilemma of securing the due process rights of class members around the world.3 In US class action law, which has been carefully crafted to protect the rights of class members, notification plays a prominent role. Although additional international concerns with class actions may remain, the notice provisions required by Rule 23 of the Federal Rules of Civil Procedure4 could provide a model for the development of notice standards in other countries.
In 1938, Rule 23 was included in the new Federal Rules of Civil Procedure. The role of notice in class actions was expanded in 1966 when Rule 23 was modified to include the ‘best notice practicable’ standard. Class action notice provisions advanced even further in 2003 when Rule 23 was amended to require plain language.5 Rule 23 requires close judicial scrutiny over the entire class action process including an explicit standard (‘fair, reasonable, and adequate’) for approving a settlement.6 In addition, when class actions settle in federal court, the Class Action Fairness Act (CAFA), enacted by Congress in 2005, is intended to further enhance the due process protection for class members by allowing scrutiny of class action settlements by federal and state attorneys general or regulatory authorities.7
Notifying class members about a lawsuit and giving them an opportunity to be heard is meant to solve many problems inherent in class actions. Beginning with the landmark ruling by the US Supreme Court in Mullane v. Central Hanover & Trust Company, US class action jurisprudence has repeatedly confirmed that notice plays a critical role in due process:
an elementary and fundamental requirement of due process in any proceeding which is to be accorded fi nality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objection.8
It has been said that notice helps to ‘democratize’ the class action procedure.9 Notice provides the mechanism for class members to act. Every class member has an equal right to participate in the class action but those rights and how to act on them can only be given through proper notifi cation. Notice in Rule 23(b)(1) and (b)(2) classes, where money damages are not involved, does not include a right to exclude oneself (opt- out) and is given at the court’s discretion when appropriate under the circumstances of the case. However, notice is mandatory in Rule 23(b)(3) classes where money damages are involved.10 In situations where the litigation is moving towards trial the notice typically is disseminated at least 30 days before the start of the trial. If the litigation is being settled the notice will be disseminated shortly after the court grants preliminary approval to the settlement.
This chapter provides an overview of the notification requirements under Rule 23 and offers insights into how courts and practitioners should evaluate a notice program to ensure that it adequately reaches class members with information that is easily digested and acted upon. The authors explain how a notice program is designed and executed. The chapter concludes with a discussion about administering a class action.
Individual notice
Individual notice is sent directly to the class member via first class mail (in the form of a letter or postcard) or electronic mail. The US Supreme Court, in Eisen v. Jacquelin, made clear that individual notice must be provided to all class members who are identifiable through reasonable efforts, regardless of the cost.11 ‘[W]hat is “the best notice practicable under the circumstances” and what constitutes “reasonable effort” is a determination of fact to be made in the individual litigation.’12 The individual notice concept continued to evolve in Jones v. Flowers, in which the US Supreme Court held that due process dictates that reasonable steps be taken to deal with undelivered mail.13
In referencing the notice requirements of Rule 23, the court in In re Nissan Motor Corporation Antitrust Litigation stated, ‘The United States Supreme Court has declared that subdivision (c)(2) expresses an “unambiguous requirement” that “individual notice must be provided to those class members who are identifiable through reasonable effort.”’14 The Court in Nissan went on to explain ‘[o]bviously, the word “reasonable” cannot be ignored. In every case, reasonableness is a function of anticipated results, costs, and amount involved.’15 Generally, the cost of providing notice to a class that is certified for trial falls upon the plaintiffs.16 However, the court can order that the defendant bear some of the costs of identifying potential class members.17 When a class action is being certified for settlement purposes only, typically the defendants will either separately pay for the costs of notice or the money will be deducted from the settlement fund.
Paid media notice
The key question in any notice program is what constitutes ‘the best notice practicable’? When comprehensive mailing lists of class members exist, direct mail (by post or email) should be the primary method used for notification. When comprehensive mailing lists are unavailable or cannot be compiled through reasonable effort then ‘notice by publication will suffice under Rule 23(c)(2) and under the due process clause.’18 In In Re Domestic Air Transportation Antitrust Litigation the court held, ‘[i]f class members . . . cannot be identified, there is no other requirement of mandatory individual notice, and the Court must exercise its discretion to provide the best notice practicable under the circumstances.’19
The overarching goal of any notice program is to effectively reach the class so that class members have a ‘meaningful’ opportunity to be heard.20 Rule 23 can ‘comport with constitutional standards of due process only if there is a maximum opportunity of notice to the absentee class members . . . .’21 Each class action requires a notice program tailored to the specifics of the case. Factors such as the distribution or consumption of a product or service, the number of readily identifiable class members, the anticipated class size, the demographics of class members, and the geographic location of class members influence the direction and scope of a notice program.
Both direct and indirect purchasers form distinct classes in many antitrust cases. Direct purchasers, which are often businesses that may have registered agents authorized to receive notice, are usually ‘readily identifiable’ and can be reached through direct mailed notice. The names and addresses of indirect purchasers, who are typically consumers of a particular product or service, whether an individual or entity, are not usually known. While there are many ways to communicate information, paid media is usually the basic component of a notice plan intended to reach unidentifiable class members. It is targetable to specific demographic groups, measured by accredited marketing research firms for audience reach and frequency of exposure, and contractually guaranteed to appear on a certain date.
In selecting media vehicles for notice, it is important to rely on an expert in analyzing demographics and media usage – skills that attorneys are not trained in and usually do not have – to help guide the selection. An expert can help ensure that the notice program has the optimal media or mixture of media that is necessary to strike an adequate balance between cost efficiency and reach effectiveness. Cost efficiency is critical in any large media campaign. Of course, the overall cost of class notice depends on the size and geographic location of class members. However, a national notice program relying entirely
on paid media in the US is costly and frequently runs to over a million dollars.
Identifying a target demographic and selecting media
Demographics of class members guide the selection of media in a class action notice program. Individuals within the general population consume media differently based on income, gender, age, education, and other factors. Notice programs therefore must establish a clear demographic target or targets in order to select media to reach a specific audience. How a product or service was used or how a product exposure occurred, by or to whom, where and over what period of time, provides critical information in identifying the demographic characteristics and geographic distribution of class members. This research establishes the parameters for identifying and locating class members and shapes the notice program.
In the US as well as many other countries throughout the world, accredited media and marketing research firms provide syndicated data on audience size, composition, and other factors pertaining to major media, including broadcast, print, and outdoor advertising. They provide a single source measurement of major media, products, services, and in- depth consumer demographic and lifestyle or psychographic characteristics. These research companies regularly survey consumers nationally through in- person interviews and questionnaires.
There are literally hundreds of information sources throughout the world combining the measurement of media with product usage. In the US, the leading survey company for single- source measure is GfK MRI (MRI).22 MRI’s parent company, GfK Group, is conducting similar cross- media research in eight countries throughout Europe along with print and other media surveys in at least ten more. Target Group Index (TGI) is a global network of single- source market research surveys in over 60 other countries on six continents.23 Additionally, the Nielsen Company conducts audience or marketing research in over 100 countries and is one of the leading providers of audience measurement in television and the Internet worldwide.24 Whether one is using television in the UK, magazines in Germany, newspaper in Japan, or the Internet in Australia, there is an accredited media company providing research on relevant audiences.
Demographic profiles of individuals who use a specific service or product can be constructed from these surveys. For example, the data allow notice and media experts to identify the demographics of consumers who are cell- phone users, homeowners, cigarette smokers, insurance policyholders, or prescription drug purchasers. In many instances, product usage by brand or type is available.
In addition, the media habits of these product users or demographic targets can be further evaluated. It can be determined if they are light newspaper readers, heavy television viewers, moderate Internet users, and so forth. A media expert can compare different types of media for audience penetration and cost. For example, TV penetration of a particular target audience can be compared to that of radio, magazines, and newspapers. In addition, the data is indexed by media vehicle – a specific television show, radio program, or magazine – with respect to its penetration of the target audience. This information provides direction to the media selections and ensures that the media used actually reaches the target audience.
For example, in the class action In Re International Air Transportation Surcharge Antitrust Litigation, the classes involved international travelers who had traveled on British Airways or Virgin Atlantic, which included people living predominantly in the US and the UK.25 Kinsella Media consulted several research sources in order to determine the appropriate vehicles to carry the notice. The TGI survey of the UK provided the demographic characteristics and the media usage of the class members there as well as the readership of UK publications. ComScore, an international provider of digital marketing data, provided rankings and audiences for websites visited by class members.26 This audience data revealed which media vehicles provided the most efficient means of reaching class members (in this case newspapers and travel websites), as well as how many insertions were necessary to adequately reach a substantial number of them.
Measuring media- based notice
There are a number of ways to measure media penetration. Two of the most basic are reach and frequency. Reach is the estimated percentage of a target audience reached through a specific media vehicle or combination of media vehicles. Frequency is the estimated average number of times an audience is exposed to an advertising vehicle carrying the message. Reach and frequency calculations are estimates within a standard margin of error that provide the advertiser with a reliable basis upon which to judge penetration of target audiences by media.
Software programs created by the media industry allow media planners to calculate reach and frequency estimates. Statistical formulas factor out duplication of readership or viewership among the target audience and allow calculation of reach and frequency as well as other media measurements. This allows determination of the net audience reach of a media schedule using various kinds of print, online, and broadcast media.
Reach and frequency targets depend upon a number of factors that guide how extensive a paid media program should be within the context of what is reasonable and practicable. Among the factors are the type of relief sought (injunctive relief or damages, whether direct or cy pres/fluid recovery), the seriousness of the tort, the size of the settlement, and the percentage of the class to be reached through media versus direct mail.
Determining the adequacy of notice
Rule 23 and the relevant case law do not define what constitutes adequate notice. However, the guarantee of due process that is inherent in the Fifth and Fourteenth
Amendments of the US Constitution provides valuable information on the minimum notice required.27 The Fifth Circuit has explained, ‘The essence of due process is that “deprivation of life, liberty or property by adjudication be preceded by notice and opportunity for hearing appropriate to the nature of the case.”’28 The Seventh Circuit has added, ‘due process requires notice reasonably calculated to provide actual notice of the proceeding and a meaningful opportunity to be heard.’29
To demonstrate to a court that a notice program satisfies due process, the program should provide certain objective and quantifiable elements, for example, the size of the class and the percentage of class members reached through direct notice. In particular, a notice program directed to unidentified class members should: (1) identify the demographics of class members and establish a target audience, (2) outline the methodology for selecting the media and other plan elements and how they relate to product usage or exposure, and (3) provide results that quantify for the court the adequacy of the notice based upon recognized tools of media measurement.
In cases where there is a measurable demographic target available through survey data and the reach and frequency can be accurately measured, the notice expert should use these estimates to demonstrate to the court what percentage of a target audience was reached and how many opportunities class members had to see the notice. In situations where a measurable target demographic is not available because of limitations on survey data, the notice expert must demonstrate to the court the rationale for selecting the media and why it is effective in reaching class members. A demographic analysis can provide reasonable guidance to a notice expert in determining what media is best to reach the class. For example, in a class composed of highly educated people, without any other discerning demographic characteristics, such an analysis might show that newspapers would likely be the best choice.
In the international class action In re Holocaust Victims Assets Litigation, it was not possible to measure media against Jewish or Roma (Gypsy) people, two principal target audiences.30 However, the team of notice administrators constructed a multi- faceted program that included paid media in Jewish publications and in countries where there were Jewish concentrations, worldwide press outreach in 40 countries that contained target audiences, outreach through Jewish social service networks and religious organizations, as well as in- country in- person outreach to Roma people through field coordinators and social service organizations. Reports from the administrators meticulously chronicled all aspects of the notice program, quantifying efforts and results that demonstrated its success.
Content and design of notice
‘It is in the government’s interest that class members meaningfully understand their rights and make knowing, intelligent and voluntary choices.’31 The 2003 plain language amendment to Rule 23 grew out of a desire to ensure that class members were fully informed of their rights.32 During the rule- making process the US judicial branch’s Advisory Committee on the Federal Rules of Civil Procedure asked the Federal Judicial Center (FJC) to conduct research and develop illustrative plain language notices.33 The Advisory Committee notes accompanying the revised rules discuss the importance of plain language:
The direction that class- certification notice be couched in plain, easily understood language is a reminder of the need to work unremittingly at the diffi cult task of communicating with class members. It is difficult to provide information about most class actions that is both accurate and easily understood by class members who are not themselves lawyers. Factual uncertainty, legal complexity, and the complication of class- action procedure raise the barriers high.34
According to the FJC, the first impression of any notice must ‘persuade the readers that they have a stake in the class action and that they will be able to comprehend the notice.’35 The notice must clearly describe all of the rights and options available to class members (such as filing a claim, appearing in court, objecting to the settlement, or opting out of the class36) as well as the binding nature of any judgment on anyone who fails to opt out of the class.37 Rule 23 also requires that class members be notified of an attorney fee motion by class counsel and be given an opportunity to object to it.38 This transparency of attorneys’ fees is also recommended by The Manual for Complex Litigation, Fourth, a reference guide for judges and practitioners.39
Class Action Fairness Act
In 2005, CAFA imposed new notice requirements and increased judicial scrutiny of coupon settlements (which usually give class members a coupon for future services or products with the defendant’s company) and attorneys’ fees.40 In federal court, CAFA requires defendants to give notice of a proposed class action settlement to certain state and federal government officials. Attorneys general and regulatory agencies now have a chance to comment on class action settlements providing yet another opportunity to safeguard the rights of class members. CAFA provides very detailed and comprehensive requirements for notice to regulating authorities, which must be undertaken within ten days of filing a proposed settlement. The governing court is prohibited from approving the settlement before 90 days after this notice has been given.
Administering a class action
Any class action settlement requires the terms of the settlement to be carried out: disseminating class notice via mail, email, or other means to class members; answering class members’ questions via phone, email, website, or correspondence; receiving and processing claims, with whatever specific parameters each settlement requires; calculating awards; distributing settlement benefits; and reporting to the parties. The parties can retain a settlement administrator to manage some or all of these processes, as well as to offer consultative expertise. Notice experts also may be retained by the parties to work closely with the settlement administrator to ensure that the court- approved notice program is properly implemented.41 While hired by one or more of the parties to the lawsuit, the settlement administrator generally works according to the terms of the settlement agreement, accepting only the joint direction of the parties in resolving matters not made clear by the settlement agreement. At one or more key points in the administration of the settlement, the settlement administrator typically provides a detailed summary of its actions to the court and the parties in the form of one or more affidavits or declarations. Such reporting is most often submitted prior to the hearing at which the court determines whether to grant the class action final approval, but may also be done after each phase of administration or as a final accounting.
The basic methods of administering a class action settlement with a substantial international contingent do not vary significantly from settlements with primarily US- based classes. However, such an administration requires the parties and administrator to consider up- front some key components to provide the class with clear and easily understandable information and to minimize the risk of objections – in short, to ensure the settlement is given its best chance at court approval.
Most obvious of the issues to be addressed when dealing with a class containing foreign claimants is offering notice, claim forms, and other information (via printed, online, and recorded means as well as live customer service) in various languages, all while containing costs as much as is practicable.
Language issues
Typically, an administrator works with the parties to format the approved notice so it can be mailed or emailed to a list of known class members. When administering settlements with large numbers of foreign claimants, the parties or administrator must arrange for the translation of materials into the necessary additional languages. In most cases, more than just the notice itself must be translated: claim forms, website copy, and telephone scripts must also be considered for translation. Sufficient time and a contract with a reputable firm that is capable of translating legal material are paramount, and in- country native translators are preferred. A critical issue is the existence of terms such as ‘class action,’ which are not part of the language in certain countries, either as specific words or as legal concepts. This can cause confusion among class members unless carefully explained. In such cases, a glossary should be prepared and agreed to for all terms to be used in class member communications for clarity as well as for consistency.
Recently, in Authors Guild, Inc. v. Google Inc., a worldwide consumer class action, notice was published in 216 countries in 72 languages, with direct notice and a settlement website with online claim features in 36 languages.42 Ensuring the consistency and accuracy of all materials in multiple languages, across multiple forms of media including communication with in- country organizations assisting with notice requires adherence to a translation protocol.
Data concerns
Perhaps less obvious but of utmost importance in notification and ongoing settlement administration is data management, which includes strict adherence to privacy laws. An administrator often receives class member data (such as name, address, and other information relevant to the settlement). Crossing national borders necessitates knowledge of and adherence to a multitude of data privacy laws. The European Union and its member countries as well as other nations around the world have unique requirements for the treatment of personal information, which may differ from US law.
The parties and an administrator of a settlement whose sphere intersects with differing privacy laws must consider strategies to avoid violating any privacy law. Partnership with firms located in each relevant country can be an effective strategy in dealing with privacy issues. In the administration of the Google settlement, hundreds of copyright organizations, publisher associations and author groups worldwide were contacted to ask for assistance with giving direct notice to the class which obviated the need for the release of any personal information to the administrator.43
Communicating with class members
Increasing use of the Internet benefits international administration. While accommodations should be made for printed materials and customer service in multiple languages, settlement websites can incorporate translated information to accommodate class members’ needs at their convenience, regardless of time zones, toll- free telephone numbers, or delays allowed for international mail service. Approximately 30 times as many class members fi led claims online as filed through traditional paper claims in the aforementioned Google settlement.44
A typical settlement website includes a summary of the case information including the terms of the settlement, answers to frequently asked questions, links to settlement documents such as the long- form notice, claim form, and settlement agreement, and, increasingly, the functionality to submit questions or claim forms online. By utilizing these features, many of the cost- prohibitive and time- consuming aspects of settlement administration are bypassed.
Despite this increasingly online experience, an administrator must continue to work with more traditional methods of communication. Toll- free telephone support is complicated when dealing with class members in different countries: a toll- free number established for the US cannot receive calls from most foreign nations, necessitating multiple numbers to cover all affected countries (each possibly with different instructions, such as dialing codes or geographic limitations). There are certain exceptions to this rule, however, such as ‘freephone’ numbers that will work across numerous European and other countries.
Once callers dial the administrator’s office, Interactive Voice Response (IVR) – that is, pre- recorded messaging set up in a series of menus – allows for cost- effective administration in any language. Because many callers’ questions or needs are satisfied through this automated messaging, the need for live operators in many languages is greatly reduced or eliminated. Voicemail can be utilized in those less- commonly requested languages to allow fluent operators to make callbacks rather than sit available for extended periods of time awaiting calls.
Claims processing
The administrator also facilitates the processing of claims. Settlement structures and funds vary greatly, so this process can be as simple as logging receipt of a claim or as complex as reviewing claim information such as receipts, proof of ownership documents, or financial transaction records. Similarly, benefi ts may be pre-determined awards (i.e., $5 per claimant) or require complex calculations based on pre- existing and/or class member- provided documentation.
Once the settlement has received final approval and the calculation of awards is completed, an administrator disseminates the settlement benefi ts to eligible class members. Most often, benefits are remunerated in the form of checks, but can take the forms of coupons, vouchers, or even products, depending on the settlement. The distribution phase of administration includes both the printing and mailing of checks and follow- up processing including handling of undelivered checks, re-mailing of checks to better addresses, reissuing checks when necessary, and distribution account management. Typically, this process lasts 180 days, at which point any remaining, unused or unclaimed funds are handled in accordance with the settlement agreement or the parties’
joint instruction.
Conclusion
Notice ‘provides the structural assurance of fairness that permits representative parties to bind absent class members.’45 The ‘assurance of fairness’ can only be achieved if the class is adequately reached with a notice that is easy to understand and act upon. The ability to act upon the notice requires proper administration of the class action. Administrators have the important task of ensuring that the voice of class members is heard by answering class member inquiries and processing claims, objections, and opt- outs.
The ongoing international dialogue regarding how to move forward with aggregate litigation has already played out in the US. Those experiences have had an impact on other countries’ development of aggregate litigation laws and procedures, which can be seen most prominently in Canada.46 Many other countries are on the brink of where the US was back in 1965, the year before the opt- in procedure was replaced with the current opt- out procedure. The structural dynamics of US class action law, particularly as they apply to notice and due process, are quite sound and worthy of consideration. Developing mechanisms to ensure proper notifi cation of class members will allow countries to harness the legal virtues of class actions and contain many of its vices.
In the US, a specialized service industry came into existence in order to effectively implement the class action rule. It required the generation of expert services that could identify and locate class members, give them fair notice, and administer their claims. It is likely that other jurisdictions contemplating class action reform would have to generate similar institutions to help service this process.
1 Katherine Kinsella is the President and Shannon Wheatman, Ph.D. is a Vice President of Kinsella Media. They are leading, nationally and internationally recognized experts in the design, preparation, and dissemination of legal notice in class actions and bankruptcies.
2 For a response to these negative critiques, see Chapter 1 of this Handbook.
3 The authors have worked on numerous class actions that included foreign claimants, for example: Authors Guild, Inc. v. Google Inc. No. 05- 8136 (S.D.N.Y. 2009); In re Int’l Air Transp. Surcharge Antitrust Litig., No. 06- 1793 (N. D. Cal. 2008); In re TJX Cos. Retail Sec. Breach Litig., No. 07- 10162 (D. Mass. 2008); In re Parmalat Sec. Litig., No. 04- 1653 (S.D.N.Y. 2007); In re Royal Ahold Sec. & ERISA Litig., No. 03- 1539 (D. Md. 2006); Galanti v. The Goodyear Tire & Rubber Co., No. 03- 0209 (D.N.J. 2004); In re Western Union Money Transfer Litig., No. 01-0335 (E.D.N.Y. 2003); In re Holocaust Victim Assets Litig., No. 96- 4849 (E.D.N.Y. 1999); Ahearn v. Fiberboard Corp., No. 93- 0526 (E.D. Tex. 1994); and Continental Casualty Co. v. Rudd, No. 94- 0458 (E.D. Tex. 1994). [Citation reflects the year the notice program was implemented.]
4 Fed. R. Civ. P. 23(c)(2).
5 Id.
6 Fed. R. Civ. P. 23(e).
7 The Class Action Fairness Act of 2005, §§1712–171 (2005).
8 Mullane v. Cent. Hanover Bank & Trust Co., 339 US 306, 315 (1950).
9 See Benjamin K. Kaplan, Continuing Work of the Civil Committee: 1966 Amendment of the Federal Rule of Civil Procedure (I), 81 Harv. L. Rev. 356, 392 (1967).
10 Rule 23(b)(1) is utilized to avoid prejudices that would result in inconsistent adjudication if individual actions were allowed, 23(b)(2) is used when plaintiff s are seeking declaratory or injunctive relief, and 23(b)(3) is suitable when a class action is superior to other available methods and common questions predominate over individual ones. Herbert B. Newberg & Alba Conte, 2 Newberg on Class Actions §4:1 (4th ed., West 2002).
11 Eisen v. Jacquelin, 417 US 156, 173 (1974).
12 In re ‘Agent Orange’ Prod. Liab. Litig., 100 F.R.D. 718, 729 (E.D.N.Y. 1983) (internal citations omitted).
13 Jones v. Flowers, 547 US 220, 225 (2006).
14 In re Nissan Motor Corp. Antitrust Litig., 552 F.2d 1088, 1097 (5th Cir. 1977) (internal citations omitted).
15 Id. at 1099.
16 Eisen, supra note 11, at 177.
17 Oppenheimer Fund, Inc. v Sanders, 437 US 340, 350, 355–56, 358 (1978).
18 Carlough v. Amchem Prods., Inc., 158 F.R.D. 314, 325 (E.D. Pa. 1993) (citing Mullane, 339 US 306, 317–18 (1950)).
19 In re Domestic Air Transp. Antitrust Litig., 141F.R.D. 534, 555 (N.D. Ga. 1992).
20 Armstrong v. Manzo, 380 US 545, 552 (1965) (due process requires an opportunity to be heard ‘at a meaningful time and in a meaningful manner’).
21 Greenfi eld v. Villager Indus., Inc., 483 F.2d 824, 831 (3d Cir. 1973).
22 See Mediamark Research, Inc., http://www.mediamark.com (last visited Dec. 7, 2009).
23 See Global TGI, http://www.tgisurveys.com (last visited Dec. 7, 2009).
24 See Nielsen, http://www.nielsen.com (last visited Dec. 7, 2009).
25 Declaration of Katherine Kinsella, In re Int’l Air Transp. Surcharge Antitrust Litig. No. 06- 1793 (N.D. Cal. Sept. 18, 2008).
26 See ComScore, http://www.comscore.com (last visited Dec. 7, 2009).
27 See Zadvydas v. Davis, 533 US 678, 693, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001).
28 In re Nissan Motor Corp. Antitrust Litig., 552 F.2d 1088, 1103–04 (5th Cir. 1997) (citing Mullan v. Central Hanover Bank & Trust Co., 339 US 306, 313 (1950)).
29 Nazarova v. INS, 171 F.3d 478, 482- 83 (7th Cir.1999).
30 In re Holocaust Victim Assets Litig., No. 96- 4849 (E.D.N.Y. 1999).
31 Orantes- Hernandez v. Meese, 685 F.Supp. 1488, 1499 (C.D. Cal. 1988).
32 See Kinsella Media, LLC & Rust Consulting, Inc., Plain Language Primer, available at http://www.kinsellamedia.com (last visited Dec. 7, 2009).
33 The FJC is the research and education agency of the federal judicial system. More information on the research that was done by the FJC on the model notice project can be found at http://www.fjc.gov. See also Shannon R. Wheatman, The Effects of Plain Language Drafting on Layperson’s Comprehension of Class Action Notices (2001) (Ph.D. dissertation, University of Georgia). This dissertation was based on research that was done at the FJC on the model notice project.
34 Fed. R. Civ. P. 23(c)(2)(B) advisory committee notes.
35 See FJC website, supra note 33.
36 Rule 23(e)(4) allows the court to condition settlement approval on the defendant’s willingness to provide a second opportunity to opt out. The court knows it is key for class members to understand the terms of the settlement before their individual right to file their own lawsuit is terminated.
37 ‘Surely “the best notice practicable under the circumstances” cannot stop with . . . generalities. It must also contain an adequate description of the proceedings written in objective, neutral terms, that . . . may be understood by the average absentee class member.’ In re Nissan Motor Corp. Antitrust Litig., 552 F.2d 1088, 1104 (5th Cir. 1977).
38 Fed. R. Civ. P. 23(h).
39 Manual for Complex Litigation (Fourth), §21.312 (2004).
40 Supra note 7.
41 The notice expert firm may or may not be affiliated with the claims administration firm.
42 The notice program in Authors Guild, Inc. v. Google Inc., 05- 8136 (S.D.N.Y.) was implemented and is pending final court approval as of the publishing of this Handbook.
43 Id.
44 Id.
45 Amchem Prods., Inc. v. Windsor, 521 US 591, 627 (1997).
46 The Supreme Court in Canada, in Canada Post Corp. v. Lepine, SCC 16 (S.C. 2009) ‘emphasized the vital importance of clear notices and adequate mode of publication’ as being an important requirement in recognizing a judgment within Canada.
The International Handbook on Private Enforcement of
Competition Law
Edited by
Albert A. Foer, The American Antitrust Institute, and
Jonathan W. Cuneo, Cuneo, Gilbert & LaDuca, LLP, USA
Published by
Edward Elgar Publishing Limited