Class Action Legal Notification - Kinsella/Novak Communications, LLC

Quantifying Notice Results in Mass Tort Class Actions -- the Daubert / Kumbo Mandate

Katherine Kinsella, President
Kinsella/Novak Communications, LLC
Washington, DC

©2001 Kinsella/Novak Communications, LLC

Providing the Courts with Quantifiable Notice Results

The federal class action rules require close judicial supervision of class action litigation and, in particular, notice to absent, and often unwitting, class members whose rights are being adjudicated. The Federal Rules require "the best notice under the circumstances, including individual notice to all members who can be identified through reasonable effort." Fed. R. Civ. P. 23(c)(2). The Eisen case makes clear that this requirement is quite unforgiving, as "[t]here is nothing in Rule 23 to suggest that the notice requirements can be tailored to fit the pocketbooks of particular plaintiffs." Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 176 (1974).

In many Rule 23(b)(3) class actions, and in most product liability, mass tort and consumer class cases, the members are not readily identifiable. In cases where warranty registrations or claim forms and the like exist, direct mail notice is possible to some percentage of the class. More often, in cases ranging from Fen-Phen and asbestos to house siding and breast implants, class members must be reached through published notice that includes magazines, newspapers, TV, radio, the Internet and the like.

Having designed and implemented notice programs in over 95 class actions in state, federal district and bankruptcy courts, I believe that judges and lawyers need a better understanding of how media penetrates demographic audiences, how it is measured, and the reasoning behind media choices in order to properly evaluate the adequacy of published notice.

Notice experts are often required to provide affidavits and court testimony attesting to the adequacy of the notice. As experts, the methodology used to design a notice program as well as the qualifications of the notice provider are of paramount importance. Indeed, Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993), and Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137 (1999), require more rigorous scrutiny of plans using published notice to class members who are otherwise unidentifiable.

Notice plans directed to unidentified class members must (1) identify the demographics of class members and establish a target audience; (2) outline the methodology for selecting the media and other plan elements and how they relate to product usage or exposure, and (3) provide results that quantify for the court the adequacy of the notice based upon recognized tools of media measurement.

Without an understanding of these three factors, the court has no firm basis upon which to form an opinion with regard to the adequacy of media-based notice. "I know it when I see it" is no longer a sustainable position.

The Role Of Paid Advertising

Each class action obviously requires a notice program tailored to the case. Factors such as the demographics of class members, the distribution of product or exposure, the number of readily identifiable class members, the anticipated class size, whether the case is statewide or national influence the direction and scope of the notice program.

Although there are many means of communication, paid media must be the basic component of a notice plan to reach unidentifiable class members. It is targetable to specific demographic groups, measured by accredited marketing research firms for audience reach and frequency, and contractually guaranteed to appear on a certain date.

Notice by press release, video news release, or letters to third parties who may have contact with class members are valuable but not certain. Earned media can never provide guaranteed coverage given the lack of a contract for services, a time frame within which the story must run, and the lack of a guarantee that such critical information as toll-free numbers and other contact information will be displayed. The court must be satisfied before approving a notice program that an adequate percentage of the class will have an opportunity to see the notice .

Identifying a Target Demographic and Selecting Media

Individuals within the general population consume media differently based on income, gender, age, education and the like. Notice programs, therefore, must establish a clear demographic target or targets in order to select media to reach a specific audience. How a product was used or an exposure occurred, to or by whom, where, and over what period of time provides critical information in identifying the demographic characteristics and geographic distribution of class members. This research provides the parameters for identifying and locating class members and shapes the notice program.

In asbestos cases, for example, occupational exposure is the overwhelming source of injury. The period of time that asbestos was in the workplace, the professions that had exposure (for example, building and construction trades, shipbuilding industries, and naval or merchant marines), and the latency period for disease manifestation help provide a demographic profile of class members that is predominantly male, blue-collar, at or over age 45. In addition, the extraordinary use of asbestos insulation in shipbuilding during wartime pinpoints specific geographic areas where enormous numbers of class members are likely to be located even years after the exposure.

Nationally accredited media and marketing research firms such as Simmons Market Research Bureau, Inc. ("Simmons"), and MediaMark Research, Inc. ("MRI"), provide syndicated data on audience size, composition, and other factors pertaining to major media including broadcast, print and outdoor advertising. They provide a single source measurement of major media, products, services, and in-depth consumer demographic and lifestyle/psychographic characteristics. These research companies regularly survey consumers nationally through in-person interviews and questionnaires.

Simmons and MRI provide demographic profiles of individuals who use a specific service or product. For example, the data allows us to identify the demographics of homeowners, cigarette smokers, individuals who bought insurance in the last twelve months or diet drug users. In many instances, product usage by brand or type is available.

In addition, the media habits of these product users or demographic targets can be further evaluated. It can be determined if they are light newspaper readers, heavy television viewers, moderate magazine readers, and the like. Different types of media can be compared for audience penetration and cost. For example, TV penetration of a particular target audience can be compared to that of radio, magazines and newspapers. In addition, each media vehicle -- a specific television show, a radio program, or a magazine -- is indexed with respect to its penetration of the target audience. This information provides direction to the media selections and ensures that the media used actually reaches the target audience.

It is not adequate notice, for example, if summary notices appear in hundreds of newspapers nationwide when the class is comprised of low-educated, low-income consumers who are not newspaper readers.

Simmons and MRI also measure the readership, as distinct from circulation, of over 200 consumer publications and national newspapers, allowing the calculated estimation of audience reach through a print media schedule. Neilsen Media Research, Inc., and Arbitron provide audience measurements against age and gender demographics that enable television and radio audience estimates. ABC audit statements proved definitive circulation information for print media.

Measuring The Published Notice

There are a number of ways to measure media penetration. Two of the most basic are reach and frequency. Reach is the estimated percentage of a target audience reached through a specific media vehicle or combination of media vehicles. Frequency is the estimated average number of times an audience is exposed to an advertising vehicle carrying the message.

Reach and frequency calculations are estimates within a standard margin of error that provide the advertiser – whether Coca Cola, McDonald's, the Sierra Club or the court – with a reliable basis upon which to judge penetration of target audiences by media.

Software programs created by the media industry allow reach and frequency estimates to be calculated. Statistical formulas factor out duplication of readership or viewership among the target audience and allow reach and frequency, as well as other media measurements, to be calculated. This allows the net audience reach of a media schedule using various kinds of print and broadcast media to be determined.

There is no set reach or frequency standard. In some instances, a 95% reach of the target audience with a 3+ frequency is appropriate; in other cases, a much lower reach and frequency is adequate. Reach and frequency targets depend upon a number of factors that guide how extensive a paid media program should be within the context of what is reasonable and practicable. Among the factors are the type of relief (injunctive or damages, whether direct or cy pres/fluid recovery), seriousness of the tort, size of the settlement, percentage of class to be reached through media versus direct mail.

In addition, it is not always reasonable to achieve a high national reach in a nation-wide class action when the class members live for the most part in specific geographic areas. For example, in Richison v. Weyerhaeuser Co., No. 005532 (Cal. Super. Ct., San Joaquin County), five states had 95% of the product distribution even though this was a nation-wide class. National notice was achieved through Parade and USA Weekend with a nearly 70% reach of the targeted audience. Additional media was purchased in the five states providing reaches from 91.1% to 97.5% with frequencies of 2.1 to 3.1 exposures.

Determining the Adequacy of Notice

When paid media is being used for notice, the tools available for measuring the reach and frequency of the media must be used. Reach and frequency estimates are standard methods used by every major advertising and public relations firm in the country to help select media to reach particular targets and to measure the reach of those targets and how often they may have the opportunity to be exposed to the message.

The use of these tools is not imposing an "advertising standard" on notice programs. The tools are simply providing a measurement of the media's ability to reach class members. There is, moreover, no advertising or media standard for notice programs. Each case is different; consequently, reach and frequency goals will be different. These measurements are simply the calculation of what the media is delivering.

Some talk of achieving a "legal standard" for notice programs. A notice is deemed "adequate" if a court approves it. However, without using industry-recognized standards of measurement, courts do not have the expertise to evaluate published notice programs. Circulation figures and the number of advertising placements or press articles alone are insufficient guides for assessing whether notice was actually or likely received by absent class members.

USA Today, for example, is often used as stand alone national class action notice. However, the 18 and older readership of USA Today is only 4,612,000 out of a total 196,328,000 adults nation-wide. National distribution should not be confused with national notice when less than a 2% penetration of an audience could never be deemed adequate. (USA Today is, however, frequently a useful component of a national notice program. As they say, necessary but not sufficient.)

Expert Defense Of The Notice Plan: The Role Of Reliability And Relevance

In the wake of the Supreme Court's decisions in Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993), and Kumho Tire Company v. Carmichael, 526 U.S. 137 (1999), the reliability of a notice expert's testimony should to be tested against the standards that have been developed within the media industry for determining whether and to what degree a target audience has been reached and how often. In performing the "gatekeeping" function of determining the reliability and relevance of the testimony, courts can be expected to reject expert testimony that does not rely on accepted data and methodology.

As expected, the Supreme Court's decisions in Daubert and Kumho have led to increased scrutiny of expert testimony. A recent study released by the Federal Judicial Center on the effect of these decisions indicates that judges are far more cautious about admitting expert testimony and more probing about the basis for the expert's reliability.

While Daubert addressed scientific expertise, Kumho makes clear that the same principles apply to all expert testimony and not just scientific evidence. According to the Court, "Daubert's general holding – setting forth the trial judge's general 'gatekeeping' obligation – applies not only to testimony based on 'scientific' knowledge, but also to testimony based on 'technical' and 'other specialized' knowledge." 526 U.S. at 141.

A federal judge performs this gatekeeping function by ensuring that an expert's testimony both rests on a reliable foundation and is relevant to the task on hand. In order to determine reliability, the court must analyze the data and facts upon which the expert relies and the methodology used to support the conclusions.

In assessing the expert witness's reliability, the court must determine whether the testifying expert "employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field." 526 U.S. at 152. That showing would likely require evidence that the expert's data and methodology are similar to that used by professionals in the relevant field.

In the wake of Daubert and Kumho, experts on class action notice who testify to the adequacy of a notice program should be held to the standards of other media professionals in addition to being knowledgeable about the requirements of Federal Rule 23, its state equivalents and prior court approval of particular notice programs.

Good notice practice dictates that the court be provided with the tools to judge the adequacy of a media-based notice program including the breadth of reach and the opportunities class members have to be exposed to the notice. Daubert and Kumho now make it imperative.