The Critical Role of Advertising Media Planning in Federal Rule 23 Class Action Notice

Abstract

Federal judges frequently must use mass media advertising to provide legal notice in class actions to meet requirements of court rules and constitutional due process. Unlike most marketing situations, in which relatively low but sustained target audience coverage by advertising can help support long-term sales and profits, court rules and constitutional due process demand high class coverage within a relatively short time frame, often spanning 30 to 90 days. Yet judges and attorneys typically lack the expertise to determine the number of class members who are exposed to and read a mass media notice, and case law and official judicial guidelines provide minimal and thus inadequate information. The use of mass media notice without sufficient analyses of likely notice coverage among class members can jeopardize the rights of class members and the legal integrity of the proceedings. Therefore, courts should demand the use of state-of-the-art media planning procedures, as demonstrated in this study, to forecast due process performance of alternative notice plans.