The “best notice that is practicable under the circumstances” standard in Federal Rule of Civil Procedure 23(c)(2)(B) is often a source of disagreement between parties, or between a party and the court, in class action litigation. Over time, some agreement, or at least some standard practices, regarding communication methods have evolved: mail and print publication are the traditional means of effecting notice. However, as this Comment will argue, in a society where many, even most, people use the internet and other newer communication technologies, those traditional practices do not necessarily meet the standard as articulated in the rule. Courts often seem to rely principally on precedent when determining what constitutes adequate notice instead of focusing on the language of the rule, which, by specifically pointing to “the circumstances,” suggests that the standard of “best notice practicable” is different in each case. While compliance with Rule 23(c)(2)(B) may seem like a minor procedural issue, compliance is in fact critical: a class member’s constitutional rights can be violated if notice is ineffective or inappropriate in the circumstances. For this reason, courts must adhere more thoughtfully and faithfully to Rule 23(c)(2)(B)’s “best notice that is practicable under the circumstances” standard.
The issue of courts’ comfort with the communication technologies of today’s world was highlighted in a series of court orders trying to resolve disputes over notice in Mark v. Gawker Media LLC. This case generated much interest in the legal world for allowing the use of social media sites or accounts for notice in a collective action, which is not the same as a class action. However, the arguments of the parties and the orders of the court illustrate the competing views on the proper role of new communication technologies in class action notice. While the Gawker court ultimately denied class certification and granted summary judgment to the defendants, the allowance of notice via social media may be influential in future class actions.
This Comment will first introduce class action notice, then summarize the history of class actions in general and of class action notice under Rule 23(c)(2)(B) in order to highlight the issues of justice and constitutional rights implicated by class action notice. This Comment will then review courts’ sanction and use of what is here categorized as “traditional,” or pre-internet, means of notice under Rule 23—namely, physical mail, print newspaper publication, television, and radio. Then, courts’ use of more current means of notice will be reviewed, from the older and more common technologies of email and websites to the newer and less common means of social media and text messaging. This Comment will then discuss the implications of notice practices in today’s world in terms of compliance with Rule 23(c)(2)(B)’s “best notice that is practicable under the circumstances” standard, concluding that the language and history of Rule 23(c)(2)(B), in connection with constitutional due process imperatives, require courts to use newer communication technology methods in most cases and to explicitly base all notice scheme decisions on the standard given in Rule 23(c)(2)(B)’s language. Additionally, courts must be more active in evaluating notice plans and protecting the constitutional rights of class members.