Law360, New York (April 13, 2016, 10:49 AM ET) -- In class actions brought in federal court pursuant to Federal Rule of Civil Procedure 23(b)(3), the federal rules and due process require the court to “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.”[1] Historically, to satisfy these requirements, courts have approved notice plans that consisted of direct notice via first-class mail (where class members are identifiable and contact information is available) combined with publication notice disseminated through traditional forms of media (e.g., newspaper, magazine, television or radio). However, many perceive these traditional  forms of notice as antiquated or outdated, and certainly not “the best notice that is practicable under the circumstances.”

Indeed, today, millions of Americans communicate and/or consume media through digital or electronic methods. In fact, you’re reading this article online and you’re in good company! Research indicates that online sources are the main source of news in the U.S., surpassing both television and print.[2] It is estimated that more than 30 million Americans get their news via the Internet each day.[3]

Given the change in the way we as a society communicate, and, in fact, rely on electronic forms of communication, it likely comes as no surprise that the Rule 23 Subcommittee to the Federal Advisory Committee on Civil Rules has proposed amendments to Rule 23(c)(2)(B) that recognize these advancements in technologies and communication. Specifically, the proposed amended Rule states (proposed edits are italicized):

Rule 23(c)(2)(B) “For (b)(3) Classes. For 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 [by the most appropriate means, including first-class mail, electronic or other means] {by first class mail, electronic mail or other appropriate means} to all members who can be identified through reasonable effort.”[4]

The proposed language calls for providing notice by the “most appropriate means” and explicitly recognizes that such means may be electronic. Similarly, the proposed draft committee note for this amendment recognizes that “courts and counsel have begun to employ new technology to make notice more effective,” and encourages the legal community to “take account of current realities.”[5]

While the legal profession is often slow to adopt new technologies[6] — lawyers, after all are rarely “early adopters” (perhaps in part because lawyers in general are risk-averse)[7] — in recent years, as the proposed amended Rule 23 recognizes, the legal community has finally begun to embrace the changes in technology. Indeed, taking advantage of these  advancements, litigants have crafted (and courts have approved) new ways to communicate and disseminate class notice to class members. For example, courts have approved class notice plans that contain some form of electronic or digital communication, including direct email notice (where possible), online banner advertisements, online keyword searches, and messages or advertisements on social media and social networking sites.[8] Often times these electronic or digital notices are used in conjunction with traditional forms of media.

The legal profession’s use of digital and electronic media makes sense. Digital and electronic media not only allow litigants to reach a large audience, but also offer new tools and concepts that can more effectively and efficiently target specific individuals who may be potential class members. For example, it may be easier to more effectively reach class members through targeted online advertising and frequency capping (i.e., restricting the number of times a specific visitor to a website is shown a particular advertisement).[9] And, the availability of tools that measure the reach of online advertisements against individuals with specified demographics make it even easier to measure the effectiveness and success of media plans.

Courts have recently taken advantage of some of these new tools. In Flynn v. Sony Electronics, the court approved a notice plan that included online banner ads and Facebook text ads that were geographically and demographically targeted to reach potential class members.[10] The class in Flynn consisted of California and New Jersey residents who purchased certain model Sony notebook computers. More than 1.3 million online impressions were geographically targeted to California and New Jersey residents and more than half a million of those impressions were demographically targeted to residents of those states who likely owned Sony laptops. Similarly, the notice plans in In re Motor Fuel Temperature Sales Practices Litigation[11] and Edwards v. National Milk Producers Federation included frequency capping which helped control the frequency the target audience was exposed to the notice, by limiting the number of exposures per unique web browser and/or IP address.

As has long been true when litigating the propriety of class notice through traditional forms of media, as these new digital and electronic media components find their way into class notice plans, it is important for practitioners to work with experienced experts who can devise effective notice plans and opine on their efficacy. The proper experts can help lawyers and judges understand various digital marketing and advertising concepts and implement successful online campaigns designed to target potential class members using sophisticated technologies in measurable ways. This helps ensure effective and efficient reach and frequency of exposure to notice.

As evidenced by the proposed changes to Rule 23’s notice requirements, the legal community should continue to look for ways to use electronic or digital methods for class notice purposes. This is especially true in cases where the target audience is likely to use these media. For example, in cases where class members are likely to be social media users, the “best notice that is practicable under the circumstances,” may well be a Facebook ad targeted to reach those class members.[12] Of course, digital or electronic forms of notice may not be appropriate in every case and litigants should understand that courts are appropriately reluctant to force parties to provide notice if doing so compels speech or otherwise inappropriately interferes with a party’s legitimate business communications with its customers.[13]

Although class action practitioners should keep an eye on the changes to Rule 23, in all likelihood, whether or not Rule 23(c)(2)(B) is amended to include language that expressly recognizes “electronic” means, it is likely that as electronic communications become even more ubiquitous, the use of digital and electronic forms of class notice will continue to increase. Depending on the case, and the target audience, electronic or digital notice can often be more effective, sometimes more cost-efficient, and likely the “best notice that is practicable under the circumstances.”

Published by California Law360, Class Action Law360, Media & Entertainment Law360, and New Jersey Law360 on April 13, 2016.