PUBLIC HEARING ON PROPOSED AMENDMENTS TO THE FEDERAL RULES OF CIVIL PROCEDURE JUDICIAL CONFERENCE ADVISORY COMMITTEE ON CIVIL RULES Telephonic Hearing February 16, 2017 List of Confirmed Witnesses for the Public Hearing on Proposed Amendments to the Federal Rules of Civil Procedure Judicial Conference Advisory Committee on Civil Rules Telephonic Hearing February 16, 2017 – 1:00 P.M. Witness Name Organization Testimony/Comments Received 1. Michael R. Pennington Bradley Arant Boult Tab 1 Cummings LLP Testimony dated 2/7/2017 2. Ariana J. Tadler Milberg, LLP Tab 2 Outline of Testimony dated 2/16/2017 3. Timothy A. Pratt Boston Scientific Corporation No testimony or comment received 4. Steven Weisbrot Angeion Group Tab 3 Comment dated 2/6/2017 5. Eric Isaacson Law Office of Eric Alan Tab 4 Isaacson Testimony dated 2/16/2017 6. Gerald L. Maatman, Jr. Seyfarth Shaw LLP Tab 5 Comment dated 2/15/2017 7. Professor Judith Resnik Yale Law School Tab 6 Comment dated 2/6/2017 8. Peter Martin State Farm Mutual Insurance No testimony or comment received Co. 9. Theodore H. Frank Competitive Enterprise Tab 7 Institute Outline of Testimony dated 2/6/2017 Comment dated 2/15/2017 10. Richard Simmons Analytics LLC Tab 8 Comment dated 2/15/2017 11. Patrick J. Paul Snell & Wilmer LLP No testimony or comment received TAB 1 TESTIMONY OF MICHAEL R. PENNINGTON OF BRADLEY ARANT BOULT CUMMINGS LLP, ON BEHALF OF DRI TAB 2 OUTLINE OF TESTIMONY ARIANA TADLER OF MILBERG LLP TAB 3 COMMENT OF STEVEN WEISBROT OF ANGEION GROUP February 6, 2017 VIA E-Mail Committee on Rules of Practice and Procedure Thurgood Marshall Building Administrative Office of the U.S. Courts One Columbus Circle NE Washington, DC 20544 [email protected] Re: Comments on Proposed Notice Changes to Rule 23 I am a Partner and Executive Vice President of Notice & Strategy at Angeion Group, a national class action notice and claims administration company. My notice work comprises a wide range of class action settlements, including settlements surrounding product defects, false advertising, fair labor standards, antitrust violations, tobacco, banking, insurance, and other statutory matters. 1 For several years, I have been instrumental in infusing digital and social media, as well as big data and advanced behavioral targeting, into class action notice programs. I have collectively reached hundreds of millions of people via a variety of media, including direct mail, e-mail, social media, and digital banner advertisements2. Notably, I am the only notice expert in the country who has fulfilled the professional certification program offered by the Interactive Advertising Bureau (IAB) in Digital Media Sales. The IAB certification program is accredited by the American National Standard Institute (ANSI) and is the only globally recogniZed, accredited, professional certification program created specifically for digital media sales professionals. I write in support of the proposed amendment to the notice portion of Rule 23, expanding individual notice to include “electronic means, or other appropriate means.” The new proposed rule is rooted in commonsense and progressive logic that mirrors the current media landscape, yet remains flexible enough to accommodate the changes in technology and media that currently shape, and will inevitably continue to inform, advertising performance for years into the future. Historically, notification relative to class action lawsuits has employed traditional advertising and marketing models to reach class members. It is through this lens, in conjunction with relevant Supreme Court precedent, that the proposed rule should be evaluated. Just as each brand advertiser utiliZes different advertising strategies to reach their desired customers, each settlement has its own unique media fingerprint that should guide the preferred dissemination of notice, including individual notice. This is particularly true given the breakneck 1 A list of Angeion Group’s representative cases can be viewed at http://www.angeiongroup.com/cases.htm 2 Attached as Exhibit “A” is a list of selected judicial recognition of my notice work. speed with which advertising is changing vis a vis targeted e-mails, digital advertisements, social media and cross device tracking capabilities. Class notice cannot be an afterthought; nor can it have a "one siZe fits all" solution that ignores modern communication realities. Class notices should be tailored to the needs and interests of each particular case, and overseen by a judge with an understanding of the wealth of options that are available in that case. As advertising evolves, and the role of U.S. mail and e-mail changes, it is essential to maintain the level of flexibility that the new rule thoughtfully provides. It is however critical to note that the proposed amendment will be counterproductive without performance of a more rigorous judicial analysis of any proposed notice plan during the preliminary approval process. This new analysis should not be a one-dimensional, inquiry relying solely on a proposed media plan’s reach percentage3, nor should it rely solely on U.S. mail “because that is the way it has always been done”. Rather, each plan must be subject to a careful and holistic judicial review based upon the distinctive facts of the settlement under review, the currently available class member data, and other factors, including but not limited to, the type and amount of relief to which class members are entitled, the class members’ relationship to the defendant, as well as the scope of the underlying release. Recently, I met with representatives of the Federal Judicial Center, along with three prominent practicing class action attorneys (both plaintiff and defense) and an esteemed former Federal Judge. We offered our collective pro bono assistance regarding how to best inform the judiciary about the various tools that are available to disseminate notice (tools that include, among other things, both electronic means and U.S. Mail), and how notice programs need to be tailored on a case-by-case basis, using those tools, to achieve maximum effectiveness. We suggested a comprehensive approach to fashioning a robust class notice program at the preliminary approval stage of litigation – using guidelines and best practices that will likely increase efficiency and reduce grounds for objections, thereby improving the process for all stakeholders. I am confident that the proposed amendment, when combined with rigorous judicial analysis, will safeguard class members’ right to receive the best notice practicable. The new proposed rule will further aid in dismantling the cookie-cutter, reflexive approach to class action notification that has remain unchanged for decades. The paradigm of class member notification is not easily expressed in rules of thumb; it contains myriad considerations and is reliant on informed research and sound methodology; however, the one constant, is that there is not just one objectively correct way to reach class members in all cases – just like there is no single “correct” way for advertisers to advertise for their brand. Notification should be approached as an art, rather than an exact science. Flexibility, 3 For an in-depth analysis of the practical realities of reach percentage analysis, please see my article “Is Digital the New Print in Class Action Notification Programs?” available at http://apps.americanbar.org/litigation/committees/classactions/articles/winter2015-0215-is-digital-the-new-print-in-class-action- notification-programs.html creativity, and critical thought are necessary to craft the proper notice program for the requisite class. U.S. mail is not always the gold standard as it relates to individual notice, nor is a digital campaign always a more cost-effective option to reach class members. Rather, the reality is that each class action settlement is unique, and possesses its own set of distinctive facts that should affect what method of notice is most appropriate in each case. Failure to critically examine these factors, in favor of a one-dimensional rules-based system, will not ensure that class members receive the best notice practicable in this new media environment — in fact, it may have the opposite effect. While it is certainly true that means of communication will continue to change, and that one cannot today forecast the future, that is not a reason to continue with a notice standard that may be antiquated and thus, at times, only lends an ineffectual nod to due process. Likewise, the committee need not be concerned that mass media communications will supplant individual notice, as the district court’s gatekeeper function will always be governed by Supreme Court precedents, including Mullane v. Central Hanover Trust & Bank Co.,4 which astutely warned against notice as a “mere gesture.” To the contrary, judges will be armed with detailed expert reports, decades of supreme court precedent, and new educational opportunities that will allow them to critically analyze modern, effective, and appropriate notice programs. The fact that there is novel, albeit ever-evolving, information available and a new media paradigm in place, is not a reason to delay moderniZing class action notice. To the contrary, it is evidence that class action notification has remained inert for far too long and that the time is ripe to collectively reexamine how to effectuate the best notice practicable, considering all the tools currently available, with flexibility to accommodate inevitable future advancements in advertising technology. The Current Media Landscape We now live in a world where 24% of people in developed markets reach for their smartphone immediately after waking up; 49% within 5 minutes; 70% within 15 minutes, and 93% within an hour.5 Additionally, 59% of US internet users profess that they are addicted to their digital devices.6 U.S. Consumers spend over 11 hours a week on average on their smart phone apps, and almost 7 hours each week on the internet via their computer7 Mobile advertising now influences 45% of all US shopping journeys and half of connected devices in U.S.