Articles & Publications

Class Action Perspectives

Majority of Class Action Publication Notices Fail to Satisfy Rule 23 Requirements

• Shannon R. Wheatman, Ph.D. and Terri R. LeClercq, Ph.D.

Reproduced with permission from The Review of Litigation, Vol. 30, No. 1 (2011). Reproduced with permission from Class Action Litigation Report, 12 CLASS 560, 06/24/2011. Copyright © 2011 by The Bureau of National Affairs, Inc. (800-372-1033) http://www.bna.com

On December 1, 2003, Federal Rule of Civil Procedure 23 (Rule 23) was amended to require that class action notices in federal court “clearly and concisely state in plain, easily understood language” the information that class members need to make an informed decision.¹ In 2000, the Advisory Committee on Civil Rules of the Judicial Conference of the United States had solicited assistance from the Federal Judicial Center (FJC), the research and education agency of the federal judicial system, to draft model notices that would satisfy the plain language requirement.²

In this article, notice expert Dr. Shannon R. Wheatman and legal writing expert Dr. Terri R. LeClercq, who worked with the FJC for a number of years to develop the model notices, explain the continuing problems with poorly worded and poorly designed notices.³ Wheatman and LeClercq report findings from a study of 511 class action notices that were published after the plain language amendment took effect. The research uncovers many shortcomings and the authors offer advice on improving the design and content of class action notice.

I. What is Plain Language, and Why is it Necessary?

Notice has progressed in the years since the passage of the plain language amendment, but it still has a long way to go to realize the Advisory Committee’s goals that “notice be couched in plain, easily understood language” and that practitioners “work unremittingly at the difficult task of communicating with class members.”⁴ However, class members cannot benefit from Rule 23 if practitioners are not held accountable.

Plain language is clear and direct. It relies on principles of clarity, organization, layout, and design. Plain language writers “let their audience concentrate on the message instead of being distracted by complicated language.”⁵ Thus, plain language
communicates effectively with laypersons. This is critical because only 28% of U.S. adults have graduated from college.⁶ In fact, a 2003 literacy study found that less than 15% of U.S. adults were proficient in “integrating, synthesizing, and analyzing multiple pieces of information located in complex documents.”⁷

Empirical research has shown that redrafting legal documents into plain language increases reader comprehension and is more persuasive.⁸ On the other hand, failure to write in plain language can have serious consequences because if readers cannot understand the content of a document, they will stop reading.⁹ In the class-action notice context, that means due process will be thwarted and class members will remain uninformed of important rights they are giving up.

II. Development of the Model Plain Language Notices

The FJC conducted research to determine the best way to write class action notices to allow laypersons to easily understand all of their rights and options. The model plain language notices (“model notices”) include examples for two settlement classes (including a securities settlement and a personal injury/product liability settlement) as well as a model notice for an unrestricted certification involving an employment case on a trial track. To aid judges and practitioners, the FJC has posted the model notices at www.fjc.gov.

The model notices were not created in a vacuum but were developed through a thoughtful, multi-stage process that culminated with an empirical study. The empirical study on the FJC’s securities notice proved that the plain language versions of the model notices were exponentially more understandable than the typical legalistic notices that are still common today.¹⁰ The notice project involved real-world testing that included focus groups composed of laypersons of average education. The first author of this report tested securities model notices on shareholders in investment clubs across the country.¹¹

Most of the focus group participants displayed a very general knowledge of class action lawsuits.¹² At the same time, most participants were relatively unfamiliar with class action notices.¹³ Participants’ “preconceived notion[s] of a notice [were] almost totally negative; they expected to find wordy legalese that would be difficult or impossible to understand.”¹⁴ Most notices today continue to live down to this expectation.¹⁵

III. Where Are We Now?

With the passage of the plain language amendment, the hope was that the world of class action notice would be turned on its head and lawyers would take great strides to ensure that class members could finally understand all of their rights and options.
The real question: how far has class action notice come in the past six years? Well, if you turn to the pages of many major newspapers and periodicals, you will probably find a typical class action notice—that is, if you can see it. Many notices continue to be written in small, fine print;¹⁶ the notice often features the court’s official-looking case caption,¹⁷ which does not provide any incentive for actual class members to read it.¹⁸ If readers can get past the design features that deter reading, they will likely be met with large blocks of jargon-filled text that are unintelligible to many laypersons.¹⁹

IV. Current Study

To determine empirically whether class action notices are complying with the plain language requirement of Rule 23, the authors reviewed 511 class action notices published between 2004 and 2009.²⁰ The sample included 176 notices filed in state
court (representing 42 states) and 335 notices filed in federal court (representing 54 federal district courts).²¹ The sample included 477 settlement notices and 34 certification notices. The lawsuits involved a variety of subject matters including antitrust, banking and finance, consumer, employment, environmental, human rights, insurance, pharmaceutical, privacy, securities, and telecommunications.

Both authors evaluated the content of each notice.²² They evaluated the notices on design attributes, content, and overall readability. The layout or design of a notice includes the headline, font size, ad size, and the techniques used to highlight important information. The content of the notice includes information about the lawsuit, the class definition, settlement details, attorneys’ fees, how to file a claim, how to be excluded, how to object, deadlines, hearing date, and the binding effect of any settlement or judgment. Readability was based on whether the notice was concise, avoided legalese, and was written in plain language.

The authors found significant differences in securities and non-securities notices and therefore present the overall findings for each group separately.

A. Key Findings

• Over 90% of securities notices used an uninformative case caption in the header of the notice.
•  Most notices did not include a noticeable and informative headline to capture the attention of potential class members.
• Over 60% of notices were written in less than an 8-point font.
• The majority of notices failed to clearly inform class members of the binding effect of the settlement.
• Over two-thirds of the notices with an opt-out right did not inform the class member that they could opt out of the litigation or settlement.
• Over 75% of the notices did not tell class members they had the right to appear through an attorney.
• Over two-thirds of the notices failed to satisfy the concise, plain language requirement of Rule 23.

B. Notice Design

There is more to a notice than just words on a page. The design or layout of a notice influences readability. The FJC study found that comprehension of class action notices could be significantly improved through deliberate changes in “language, organizational structure, formatting, and presentation of the notice.”²³

The design of a notice will determine whether anyone will even attempt to read it. The notice must be designed using a reader-friendly format that will entice class members to want to take time to review it. A well-designed notice will incorporate readable fonts, a noticeable and informative headline, section headings, adequate white space, and proper highlighting techniques such as using bold headlines and avoiding all capital letters (CAPs).

Figure 1 reveals that a clear majority of class action notices in the study did not heed the sage advice of The Manual for Complex Litigation, which recommends that an author take steps to get the attention of class members: “Published notice should be designed to catch the attention of the class members to whom it applies. . . . Headlines and formatting should draw the reader’s attention to key features of the notice.”²⁴

 

 Figure 1: Percentage of sample publication notices using appropriate design features.

C. Headline

Advertising research has found that the eyes and consciousness of most readers never make it past the headline.²⁵ A court’s formal case caption (inappropriately used in 38% of non-securities and 91% of securities notices) will never provide an adequate headline for a class action notice because it does not alert the reader to the subject matter. The case caption is meaningless to any class member who is not a named party.

The size of the headline is also important. It is doubtful that attorneys would use a tiny font size to advertise their law firm. However, the majority of notices in the study (61% of non-securities and 74% of securities notices) had a headline or heading a few point sizes smaller than the text in this article. Fifty-nine percent of notices used the same size font for the headline and the body of the notice. The headline needs to stand out from the body of the text and should be in a much larger font in order to catch the attention of potential class members. A recent study found that an easy-to-read font is more likely to get people to act because it is more appealing, easier to handle, and more efficient.²⁶

A carefully crafted headline should be noticeable and should quickly persuade readers that they have a stake in the class action and that they will be able to understand it. Here is an example of an attention-getting headline from the securities model notice.

The large, noticeable font will capture the attention of potential class members, and the benefit focus of the headline will motivate them to read the notice.

D. Organization, Internal Cues, and White Space

Information is well-organized if it is easy for readers to navigate. Writers can accomplish this by using appropriate headings and sub-headings. The notice should tell the story of the litigation. Unnecessarily long sentences and lengthy paragraphs in many of the sample notices became even more cumbersome because many notices failed to incorporate section headings (41% of non-securities and 88% of securities notices). Section headings should serve as guideposts to the information in each section and improve readability by breaking up large blocks of text.²⁷

In addition, a large majority of sample notices (84% of non-securities and 97% of securities notices) included wall-to-wall words with little to no white space around the paragraphs and headings. Focus groups in the FJC study found that density off-putting.²⁸ One notice in the study was the size of four postage stamps. There is absolutely no way something that small can attract the attention of potential class members, let alone provide the information required by Rule 23.

E. Appropriate Highlighting Techniques

Furthermore, the model notices show that appropriate highlighting of key information (e.g., bolding important deadlines) also breaks up the text and lets readers know what is important. Appropriate highlighting of important information appeared in one out of ten securities notices and about one-third of non-securities notices. Another common design flaw is the use of all capital letters in long strings of text. Some writers may innocently believe this is a good way to provide a class definition or to give warnings. However, PEOPLE RECOGNIZE WORDS BASED ON THEIR SHAPE, NOT THE ACTUAL LETTERS IN THE WORDS.²⁹ ALL CAPS ARE HARD TO READ, CAUSING THE READER TO STRUGGLE TO MAKE OUT THE WORDS. Many of the notices in the study used too many CAPs (the average numbers of words in CAPs was 28 in non-securities and 41 in securities notices). One notice had 391 words in CAPs, which made a very short notice quite difficult to read. Writers should stay away from all CAPs and instead use bold, italics, or both to make important information stand out. However, in order not to overwhelm readers, writers should use this highlighting in moderation.

F. Content of the Notice

Rule 23 requires that specific content be written in plain language.³⁰ The notice must clearly describe (1) the nature of the case, claims, issues or defenses, (2) the class definition, (3) certain rights and options available to class members (such as appearing in court, objecting to the settlement, or opting out of the class), and (4) the binding nature of any judgment on anyone who remains in the class.³¹ Rule 23 also recommends that class members be notified of an attorney fee motion by class counsel, and be given an opportunity to object to it.³²

The Manual for Complex Litigation also recommends that the notice should include deadlines for taking action, describe essential terms of the settlement (including information that will allow class members to calculate their benefit), indicate the
time and place of the fairness hearing, and prominently display how to get more information.³³

Figure 2: Percentage of sample publication notices containing important information.

Figure 2 shows that some notices provide so few details that it is unlikely class members would recognize that they might benefit from reading it; it is also unlikely that those class members would learn enough from the information to decide what to do. Most securities notices failed to tell class members details about the lawsuit, the terms of the settlement, or how much attorneys stand to make from the settlement. Non-securities notices were better on most counts, but the number of notices that did not clearly tell class members what they needed to know was still high. The most astounding finding was that 10% of non-securities notices and 20% of securities notices did not provide a definition of the class.

Figure 3 provides even more troubling findings. The basic rights afforded class members under Rule 23 are often omitted from publication notices. The most common omission was notice of the right to appear, which was absent in 77% of non-securities notices and 90% of securities notices. Many notices did not inform class members that they had the right to object to a settlement (33% of non-securities and 40% of securities notices) or that they could opt out of the litigation or settlement (25% of non-securities and 31% of securities notices). Most problematic was that 40% of nonsecurities notices and 10% of securities notices did not even tell class members the all-important detail that they would be bound by any court order if they remained in the class. The term “bound” will be foreign to most laypersons. Of those notices that informed class members they would be bound, only a handful (31% of non-securities and 14% of securities notices) properly educated class members, in easily understood language, as to what “bound” really meant. The FJC model notices explain what this really means: “If you don‘t want to be legally bound by the settlement, you must exclude yourself by Month 00, 0000, or you won‘t be able to sue, or continue to sue, XYZ about the legal claims in this case.”³⁴

Figure 3: Percentage of sample publication notices containing important rights and deadlines.

G. Readability

“The purpose of [readability] is to close the gap between the reading level of the [notice] and the reading ability of [class members].”³⁵ Figures 4 and 5 show that many notices in the study failed to close that gap. Overall, only 14% of notices filed
in federal court were concise and written in plain language. In contrast, although only four of the 50 states require plain language in their class actions statutes,³⁶ the state court class action notices in the study were easier to understand than the federal class action notices, with 28% satisfying the concise, plain language requirement.

Figure 4: Percentage of sample publication notices written in plain and/or concise language in federal and state class actions.

Further analysis revealed that the securities cases in the study were causing the great disparity between federal and state court notices. Specifically, in non-securities cases, 27% of federal class action notices and 31% of state class action notices were clear and concise. In contrast, only 2% of the 170 notices filed in federal securities cases provided class members with a clear, concise recitation of their rights. These findings, albeit not very surprising, seem to provide one explanation of why billions of dollars are left unclaimed in securities cases.³⁷

Figure 5: Percentage of sample publication notices in securities and non-securities cases that are written in plain and/or concise language.

Plain language is produced by reducing or eliminating writing that frustrates even the most motivated readers: legal jargon, unfamiliar or abstract words, negatively modified sentences, words with double meanings, verbs as nouns, misplaced phrases, and prepositional phrases.³⁸ The active voice and personal pronouns aid comprehension.³⁹ Eliminating extraneous information and keeping sentences and paragraphs short helps notices fulfill the concision requirement and increases comprehension in the process.⁴⁰ It is important for practitioners to keep in mind that a notice needs only to meet the content requirements of Rule 23; it is not necessary to include every detail from the class action complaint or settlement agreement. Two legal commentators understood this concept quite well when they remarked that “[m]uch of what lawyers write . . . including many class action notices, is incomprehensible to average citizens. The lawyerly concern for completeness and accuracy may conflict with the objective of intelligibility.”⁴¹

Many practitioners may believe that it is not necessary to meet the requirements of Rule 23 in a publication notice because that information can be found in a more detailed notice. The authors disagree, but nonetheless reviewed 50 long form notices (16 securities, 34 non-securities) that were filed in 2008 and 2009. These long form notices suffered from the same defects as the publication notices. Many lacked a readable headline, few clearly informed class members about their rights, and most would be unintelligible to the average layperson. The majority of long form notices were as poorly written as the publication notices—only 18% satisfied the concise, plain language requirement (26% of non-securities notices and none of the securities notices).

A few details from the FJC study are important to note here. Some securities practitioners may mistakenly believe that a simple notice is not necessary for an educated class. The study on the FJC’s securities notices found that even shareholders were less likely to understand a legalistic class action notice than a plain language notice.⁴² To read a dense, legalistic notice, a reader must not only be educated, but also possess the time and motivation required to wade through a sea of legal jargon. The FJC study found that even the most intelligent readers will pass over a notice in small print and stop reading when they encounter unfamiliar legalese.⁴³

V. Keeping it Readable

Documents with legal content should not be burdensome reading to their intended audience. Writers should assume that class action notices will be read by a vast array of consumers who shop, buy, work, and live their lives without needing to know
court names and case numbers. When writers choose their words, they need to focus on common equivalents of legal jargon. Most readers will stop reading “a claim for declaratory relief ” before they learn that “relief ” was indeed their goal. If a legal or technical term is necessary, it needs to be defined: “exclusion means… .”

Plain language is more than merely simple words; embedded in the term is sentence length, subject/verb order, unambiguous modifiers, and even the active voice. Rule 23 is not asking authors to use baby talk, but it does insist that the notice be stated in “plain, easily understood language.”⁴⁴ If sentences average more than fifteen words, the legal content may confuse some intended readers. If interrupting clauses separate verbs from their subjects, the legal content may puzzle many readers. If a sentence is a mishmash of floating modifiers that do not logically fit next to their antecedents, most readers will be perplexed. The passive voice is also a problem: “The service contract has been claimed to be unlawful . . . class members will be bound by the determination . . . .” Who is claiming? Who is binding them? No one can unravel and reconstruct those vague sentences comfortably. Readers who are uncomfortable will stop reading, and the purpose of providing notice has been frustrated. Without plain language, the notice is moot. Courts should not approve notices that fail to meet Rule 23’s plain language requirement.

A notice needs to be clear and succinct, so an average reader can go through it once and understand its general message. Few readers will take the time to re-read, again and again, a legal notice that appears inside their newspaper or magazine. Potential class members should be caught up by the headline and mention of the product; they should be able to grasp the point of the notice at first glance. If not, writers of the notice have disregarded the purpose of the notice—to inform class members about the rights and options they have in the case.

VI. Conclusion

No one can affect class action notice as effectively as the judges who review them. Judges must be the standard-bearers and stringently enforce Rule 23’s requirements. Attorneys and judges can use the FJC model notices as a template or outline, which will allow them to see that it is possible to get all of the necessary information into a noticeable, succinct, plain language format. Satisfying Rule 23 will protect the interests of the class; only then can due process be served. To assist judges and practitioners, the authors have developed a notice checklist, attached as Appendix A.

VII. Appendix A— Notice Checklist

Design

• Noticeable headline (stands out from the body of the text)
• Informative headline (who should read it and why)
• Readable fonts
• Adequate white space
• Appropriate highlighting of important information (e.g., bold deadlines)
• Avoids all CAPs
• Logical sequence of content.
• Sub-headings to break up text
• Lists that simplify complex information
   

Content

Information about lawsuit

• Information on nature of case, claims, issues or defenses
• Class definition
• Terms of settlement
• Attorneys’ fees

Rights and Options

• Right/How to opt-out
• Right/How to object
• Right to appear
• How to file a claim
• Binding effect of judgment

Dates and Deadlines

• Opt out deadline
• Objection deadline
• Claims deadline
• Hearing date

Getting More Information

• Website
• Toll-Free Number
• Mailing Address

Concise

• Short paragraphs
• Short sentences (average length less than 15-20 words)
• No extraneous information (case caption, names of attorneys, etc.)
• Can read through once, and a layman will understand rights and options

Plain Language

• Written for the layperson
• Uses words that are common to your target audience
• Uses personal pronouns
• Avoids legal jargon and defines technical terms
• Uses consistent words throughout to refer to the same thing
• Uses mainly active voice
• Uses logically structured sentences (subject-verb-object)
• Avoids double negatives
• Avoids misplaced phrases and prepositional phrases and prepositional phrases

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* Shannon R. Wheatman, Ph.D. is a Vice President with Kinsella Media, LLC. Dr. Wheatman has been involved in more than 125 class actions and has been recognized as a notice expert in state and federal courts across the U.S. and in Canada. Dr. Wheatman previously worked in the Research Division of the Federal Judicial Center. Her doctoral dissertation was on plain language drafting of class action notice and her master’s thesis was on comprehension of jury instructions. Dr. Wheatman’s Ph.D. is in social psychology from the University of Georgia; she also holds a master’s in legal studies from the University of Nebraska-Lincoln.

Terri LeClercq, Ph.D., was the plain-language consultant for the Class-Action Model Notices produced by the Federal Judiciary Center. She taught Advanced Legal Writing at the School of Law, University of Texas, for 28 years. Before that, she taught college rhetoric and composition for more than 15 years. She is the author of Expert Legal Writing (University of Texas Press, 2000), Guide to Legal Writing Style (Aspen, 5th. ed., 2011), and almost 100 articles on legal writing.

^1. FED. R. CIV. P. 23(c)(2)(B).

^2. More information on the research that was done by the FJC on the model notice project can be found at www.fjc.gov.

^3. The team working on the model notices included the authors, Todd Hilsee, Tom Willging, and Bob Niemic.

^4. FED. R. CIV. P. 23 advisory committee's note.

^5. Robert Eagleson, Short Definition of Plain Language, PLAIN LANGUAGE, http://www.plainlanguage.gov/whatisPL/definitions/eagleson.cfm (last visited Oct. 4, 2010).

^6. SARAH R. CRISSEY, U.S. CENSUS BUREAU, EDUCATIONAL ATTAINMENT IN THE UNITED STATES: 2007, 2 (Jan. 2009), available at http://www.census.gov/ prod/2009pubs/p20-560.pdf.

^7. MARK KUTNER ET AL., NATIONAL CENTER FOR EDUCATIONAL STATISTICS, LITERACY IN EVERYDAY LIFE: RESULTS FROM THE 2003 NATIONAL ASSESSMENT OF ADULT LITERACY 4, 13 (Apr. 2007), available at http://www.nces.ed.gov/Pubs2007/2007480.pdf (finding 13% of adults demonstrated ability to perform these skills).

^8. See Joseph Kimble, Answering the Critics of Plain Language, 5 SCRIBES J. LEGAL WRITING 51, 62–65, 73 (1996) (listing a number of studies conducted on plain language and concluding that plain language is more persuasive and comprehensible to readers than standard legal writing); see generally Robert Charrow & Veda Charrow, Making Legal Language Understandable: A Psycholinguistic Study of Jury Instructions, 79 COLUM. L. REV. 1306 (1979) (arguing that systematic rewriting of jury instructions can measurably increase reader comprehension); Veda Charrow, Readability vs. Comprehensibility: A Case Study in Improving a Real Document, in LINGUISTIC COMPLEXITY AND TEXT COMPREHENSION: READABILITY ISSUES RECONSIDERED 85 (Alice Davison & Georgia M. Green eds., 1988) (rewriting automobile recall letters for readability increases comprehension among study sample); Michael Masson & Mary Ann Waldron, Comprehension of Legal Contracts by Non-experts: Effectiveness of Plain Language Redrafting, 8 APPLIED COGNITIVE PSYCHOL. 67 (1994) (reporting enhanced comprehension of legal documents after three stages of simplification).

^9. See WILLIAM H. DUBAY, THE PRINCIPLES OF READABILITY 1 (Aug. 25, 2004), available at http://www.impactinformation.com/impactinfo/readability 02.pdf (“When texts exceed the reading ability of readers, they usually stop reading.”).

^10. See Shannon R. Wheatman, The Effects of Plain Language Drafting on Layperson‘s Comprehension of Class Action Notices 21, 55 (Sept. 25, 2001) (unpublished Ph.D. dissertation, University of Georgia) (on file with author) (revealing poor overall comprehension of a sample of class action notices by laypersons—between 45% to 65%). This empirical study also found that comprehension for the rewritten securities plain language notice was over 90%. Id. (listing findings that comprehension of plain language notices ranged from 15.99 to 16.17 out of a possible score of 17).

^11. Id. at 35 (explaining the FJC securities notices study involved 229 volunteer participants who were members of 27 investment clubs).

^12. Detailed Discussion of Methodology, FED. JUD. CENTER, http://www.fjc.gov/public/home.nsf/autoframeopenform&url_l=/public/home.nsf/inavgeneral?openpage&url_r=/public/home.nsf/pages/816 (last visited Sept. 24, 2010).

^13. Id.

^14. Id.

^15. See infra Part IV.B–C.

^16. See infra Part IV.C.

^17. See infra Part IV.C–D.

^18. See infra Part IV.B.

^19. See infra Part IV.G.

^20. The notices were published in The Austin American Statesman, Better Homes & Gardens, Cosmopolitan, The Detroit News, Financial Times, Jet, National Geographic, Newsweek, The North Penn Reporter, Oakland Tribune, Parade, People, The Philadelphia Inquirer, Reader’s Digest, Spirit Flight, Sports Illustrated, The Sunday Voice, TV Guide, USA Today, USA Weekend, The Wall Street Journal, and The Wall Street Journal Sunday.

^21. Half of the notices were filed in California (19%), New York (16%), Illinois (8%) and New Jersey (7%).

^22. The percentage of agreement between the two authors was high at 92%. The average score was used when there was disagreement.

^23. Detailed Discussion of Methodology, supra note 12.

^24. FEDERAL JUDICIAL CENTER, MANUAL FOR COMPLEX LITIGATION (FOURTH) § 21.31 (2004), available at http://public.resource.org/scribd/ 8763868.pdf.

^25. See KENNETH ROMAN & JANE MAAS, HOW TO ADVERTISE, 110 (1st ed. 1976) (“[M]ost readers never reach the text or body copy”).

^26. See Hyunjin Song & Norbert Schwarz, If it’s Easy to Read, it’s Easy to do, Pretty, Good, and True, 23 THE PSYCHOLOGIST, 108, 108 (2010) (suggesting that font type leads readers to predict ease or difficulty of reading, informing their decision to act).

^27. JoAnn Syverson & Holly Littlefield, Informative Headings Improve Readability, U. MINN. CENTER FOR WRITING (Apr. 11, 2003), http://www.writing.umn.edu/tww/disciplines/business/resources/BA3033headings.html.

^28. See Detailed Discussion of Methodology, supra note 12 (“Even small changes in format and presentation . . . appeared to increase a reader’s motivation to read and understand the notice.”).

^29. Kevin Larson, The Science of Word Recognition: or How I Learned to Stop Worrying and Love the Bauma, MICROSOFT CORP. (July 2004), http://www.microsoft.com/typography/ctfonts/wordrecognition.aspx.

^30. See FED. R. CIV. P. 23(c)(2)(B) (“The notice must clearly and concisely state in plain, easily understood language...”).

^31. Id.; In re Nissan Motor Corp. Antitrust Litig., 552 F.2d 1088, 1104–05 (5th Cir. 1977) (“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.” (quoting Robinson v. Union Carbide Corp., 544 F.2d 1258, 1263–65 (5th Cir. 1977))).

^32. FED. R. CIV. P. 23(h)(1)–(2). The Advisory Committee notes that the 2003 amendments state that “it would be important to require the filing of at least the initial motion in time for inclusion of information about the motion in the notice to the class about the proposed settlement that is required by Rule 23(e).” FED. R. CIV. P. 23 advisory committee‘s notes.

^33. FEDERAL JUDICIAL CENTER, MANUAL FOR COMPLEX LITIGATION (FOURTH) § 21.312 (2004), available at http://public.resource.org/ scribd/8763868.pdf.

^34. See infra App. A

^35. IMPACT INFORMATION, WORKING WITH PLAIN LANGUAGE 29 (2008), available at www.impact-information.com/Resources/plainlanguage.ppt (last visited October 1, 2010).

^36. See generally AMERICAN BAR ASSOCIATION, SURVEY OF STATE CLASS ACTION LAW 2009 (Dennis K. Egan et al. eds., 2009), available at http://www.abanet.org/litigation/mo/premiumlt/articles/classactions/statesurvey-2009.pdf (subscription required) (examining each state class action rule and finding only Arkansas, Minnesota, New Jersey, and Texas have adopted Rule 23‘s requirement for plain language).

^37. Adam Savett, A Billion Here, A Billion There: Solving the Historical Data Problem and Recouping More in Securities Litigation, RISKMETRICS GROUP, 2, http://www.riskmetrics.com/system/files/private/SCAS_billionherebillion -there.pdf (last visited Sept. 19, 2010) (“[A]ccording to a series of academic studies conducted over the last decade, as well as anecdotal evidence from market participants, anywhere from 30%–70% of investors that are eligible to participate in a given settlement fail to file a claim form . . . .”).

^38. KINSELLA MEDIA, LLC & RUST CONSULTING, INC., PLAIN LANGUAGE PRIMER FOR CLASS ACTION NOTICE 1, 11–12, available at http://www.kinsellamedia.com/portals/1/media/pdf/PlainLanguagePrimer.pdf (last visited Sept. 19, 2010).

^39. Id. at 11.

^40. Id. at 9.

^41. Arthur R. Miller & David Crump, Jurisdiction and Choice of Law in Multistate Class Actions After Phillips Petroleum Co. v. Shutts, 96 YALE L.J. 1, 22 (1986).

^42. See Wheatman, supra note 10, at 55 (reporting higher overall comprehension for a plain language notice versus a legalistic notice).

^43. See id. at 44 (finding that only 2% of shareholder participants would read a legalistic notice carefully whereas 57% reported they would carefully read a plain language notice).

^44. FED. R. CIV. P. 23(c)(2)(B).