Class action notice expert and occasional CAB guest blogger, Dr. Shannon Wheatman, has a must-read article coming out on trends in class action notices. The article, co-authored with plain language expert, Dr. Terri R. LeClercq, is being published in the University of Texas law journal The Review of Litigation and will be titled Majority of Class Action Publication Notices Fail to Satisfy Rule 23 Requirements. As the title suggests, Wheatman and LeClercq have found that a majority of class action notices are still not meeting the plain language notice guidelines established by the Federal Judicial Center. What’s more, their study suggests that many class action notices do not even meet the basic requirements set forth expressly in FRCP 23(c)(2)(B).
The article summarizes historical developments and best practices dealing with plain language notices in class actions, and sets forth the results of an empirical study of class action notices given between 2004 and 2009. The study included publication notices given in both state and federal courts and in the settlement context as well as the contested certification context. The notices had been used in cases involving a wide variety of subject matter areas, including “antitrust, banking and finance, consumer, employment, environmental, humanrights, insurance, pharmaceutical, privacy, securities, and telecommunications.” The key findings included:
- 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.
Shannon R. Wheatman and Terri R. LeClercq, Majority of Class Action Publication Notices Fail to Satisfy Rule 23 Requirements, 30 Rev. Litig. 53, 58 (2011).
For anyone who has flipped through People Magazine or Sports Illustrated recently, it is probably not a revelation to hear that class action notices are not meeting the requirement that they ”concisely and clearly state in plain, easily understood language” certain basic information to class members. For those of us responsible for carrying out class action notice plans that comply with the rules of civil procedure, however, this article is a reminder that we need to do better.