The resources from which people obtain, and choose to obtain, information have changed dramatically. A recent and highly publicized discussion of how information is exchanged might be the so-called filter bubble that many social media users experience. This bubble has reportedly caused “autonomous decision-making,” which hypothesizes that people pay attention to only those sources of information with which they agree and that reinforce their beliefs. These theories are seemingly supported by data regarding how U.S. adults utilize services like Facebook, Twitter, Snapchat and Reddit, and how these and other social media sites are now among the primary sources of news and other information for U.S. adults.
The way people receive and believe information matters in the class action context. Judges are instructed that notices must effectively reach and come to the attention of the class – that is, command the attention of the intended recipients. The ways in which notice may be given are codified in Federal Rule of Civil Procedure 23(c)(2)(B), which provides that “[f]or any class certified under Rule 23(b)(3), the court must direct to class members the best notice that is practicable under the circumstances, including individual notice to all members who can be identified through reasonable effort.”
The “best” notice traditionally is first-class mail. Eisen v. Carlisle & Jacquelin, 417 U.S. 156 (1974). Since Eisen, however, lower courts were still free to examine other methods for notice. One court found that notice under Rule 23 was sufficient when one of the methods of sharing information was a display on a “Facebook page, which delivered individual e-mail notifications” to Facebook “fans” of its posts. Kelly v. Phiten USA, Inc., 277 F.R.D. 564, 569 (S.D. Iowa 2011). Another deemed a targeted Facebook publication that “linked to the settlement website” sufficient notice. Evans v. Linden Research, Inc., 2013 WL 5781284, at *3 (N.D. Cal. Oct. 25, 2013). Courts have found Facebook to be a “generally acceptable” means of notice when included among a set of “myriad methods for providing notice, such as notice by U.S. mail, setting up a toll-free interactive voice response telephone number, and establishing a dedicated website.” Baez v. LTD Financial Services, L.P., 2016 WL 3189133 (M.D. Fla. June 8, 2016).
But while these new methods of notice were being suggested and sometimes approved, other courts were careful not to mandate the use of the internet and social media sites. One noted, for example, that there “is no requirement under due process or the federal rules requiring dissemination of [court pleadings, related records, or other] information over the Internet or the telephone. Rather, all that is required by F.R.C.P. 23 is that Notice be provided to the class by the most practicable means available….” Mangone v. First USA Bank, 206 F.R.D. 222, 233 (S.D. Ill. 2001). And others shied away from even allowing certain social media postings due to concerns of prejudice and overreach by plaintiffs, as in Mark v. Gawker Media LLC, 2015 WL 2330079 (S.D.N.Y. Mar. 5, 2015).
As courts grapple with the best way to approach new forms of media in the context of the notice requirements, the Eisen first-class mail standard continues to loom over most proceedings. Recognizing this, the Rule 23 Subcommittee of the Advisory Committee on Civil Rules recently suggested adding the following modification: “individual notice by the most appropriate means, including first class mail, electronic, or other means to all members.” Commentators noted that this represents a powerful change that “enshrines both ‘electronic’ and ‘other’ means as acceptable methods of certification notice within the language of Rule 23—on equal footing with ‘first class mail’” and the Eisen case law.
Research indicates that the majority (62 percent) of U.S. adults get news on social media, and “[t]wo-thirds of Facebook users (66 percent) get their news on the site—a figure that amounts to 44 percent of the general population.” But practitioners express concern that electronic mail may deprive lower-income individuals of adequate notice in certain cases. Another consideration is whether the wording that the subcommittee proposed could be read to prioritize electronic notice over more traditional forms of notice. Moreover, electronic notice may be ineffective due to the “filter bubble” discussed above.
Some commentators have noted just that, opining that a determination of which “method of notice to use under the proposed amended rule will be a fact-specific inquiry for courts to answer while balancing considerations such as potential costs of notice, access of class members to various technologies and forms of communications, and the level of attention class members are likely [to] pay to the notice in any given form of transmittal.” With that in mind, and knowledge of how these tools operate, courts and practitioners may, therefore, require a better understanding of how people interact with social media to ensure that the purpose of the notice – rather than just the form – is served.