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Rule 23 does not specifically set out the contents of Rule 23(b)(1) and (b)(2) notices.⁶⁴ However, for Rule 23(b)(3) classes, Rule 23(c)(2)(B) provides a list of the minimum content required for notice to class members, such as the class claims, the right to appear, and the right to opt out.⁶⁵ In addition to this minimum content, notice of certification of Rule 23(b)(3) classes⁶⁶ must provide “information that a reasonable person would consider to be mat

Notice that fails to provide class members with important information does not protect class members’ rights or satisfy due process requirements. On the other hand, long and complicated notices that class members are unlikely to read or understand similarly fail to protect the interests of the class. As previously noted, it’s always wise to avoid providing too much information.

The notice should anticipate common problems and inquiries from class members and should provide clear answers. Potential problems and inquiries will vary, depending on the purpose of the notice. Some basic provisions should be included in most post-certification or settlement notices:

The different types of notices have their own specific requirements, but there are general precepts and best practices to consider when drafting any notice to the class. The overarching principle is that, besides complying with specific notice requirements, class counsel should make sure that all notices are easy to understand.⁹¹

When possible, use of claim forms should be avoided. As NACA Guideline 11 provides:

Class counsel should approach settlement discussion with a presumption against using claim forms, so that claim forms are used only where necessary.

Claim forms should not be used when the identity and location of class members can be determined from the defendant’s records, or when relief provided by the settlement is an account credit in an amount that the defendant can administer based on its records.

In order to send notice to the class, counsel must first assemble an accurate and complete list of class members. Either the plaintiff’s or defendant’s counsel can assemble the list using the defendant’s records.

Because class litigation can be lengthy and people frequently move, merely mailing a class settlement notice to class members’ last known addresses may result in a significant number of undeliverable notices. Therefore, it is essential to take all reasonable steps necessary to update class members’ addresses.

When providing class notice via mail, indicate on the front of the envelope that it contains an important court notice. This is especially important if the mailing is large or if class members might perceive the letter as junk mail.

There are three primary types of return addresses for class members to use to file a proof of claim, opt out, or object.

In the past, courts often required the use of first-class mail to individual class members for notices sent to Rule 23(b)(3) classes. First class mail may be appropriate for other types of notices as well.¹¹⁷ Notice need not be sent by certified mail.¹¹⁸

Although Rule 23(c)(2)(B) does not require it, the 2018 Advisory Committee Notes recognize that first class mail may still be the preferred primary method of giving notice. Specifically, the Advisory Committee Notes caution that it is important to keep in mind that a significant portion of class members in certain cases may have limited or no access to email or the internet. In such circumstances, it would be appropriate to rely upon first class mail to reach the absent class members.

If class members cannot be identified or located using the defendant’s records or any other source, notice by publication is necessary. Publication may be important as a supplement to other forms of notice. However, merely publishing the notice in printed media provides few practical benefits because class members are unlikely to see the published notice.

Prior to the 2018 amendments to Rule 23(c)(2)(B), many courts read the rule as requiring notice by first class mail,¹²⁷ while others often approved the use of appropriate websites—along with other means of communication—to provide information about the settlement notice.¹²⁸ Following the 2018 amendments, electronic means are now explicitly included as one of several acceptable methods of providing notice to Rule 23(b)(3) certified classes (as well as any other class certified for the purposes of

If a class action is certified but not yet settled, “the plaintiff must pay for the cost of notice as part of the ordinary burden of financing [their] own suit.”¹⁴³ “[A] bare allegation of wrongdoing . . . is not a fair reason for requiring a defendant to undertake financial burdens and risks to further a plaintiff’s case.”¹⁴⁴ The expense of giving notice includes all costs involved in making the notice effective.¹⁴⁵

NATIONAL ASSOCIATION OF CONSUMER ADVOCATES

Standards and Guidelines for Litigating and

Settling Consumer Class Actions

Fourth Edition, 2023

National Association of Consumer Advocates

1215 17th St. NW, 5th Floor

Washington, DC 20036

Phone: (202) 452-1989

• 1. Class counsel should be alert to defense efforts to communicate with class members that seek to entice them to abandon or settle their claims individually. These efforts undermine the court’s authority to protect class members and should not be allowed. Limiting communication between the defense and class members ensures that the judicial system’s integrity is not impugned.
• 2.

This Guideline addresses improper communications from defendants to class members.¹ The issue has arisen most often when a defendant tries to undermine the class by picking off class members.² Common ways defendants attempt to do so include trying to convince class or punitive class members to: (1) opt out, (2) release their claims, (3) enter into out-of-court settlements, or (4) compromise their factual situations in some way.³ In one case, a defe

Class counsel should generally oppose confidentiality agreements in connection with class action litigation and class settlements.

Although the law varies among jurisdictions, generally the public has a First Amendment and common law right of access to court records. The default rule is that documents filed in court are not confidential. Only if the party seeking confidentiality can meet the high bar for sealing court records is confidentiality appropriate.

Class counsel must bear in mind the critical importance of impressing on their named-plaintiff clients that individuals who accept the role of class representative have more at stake than their own claims. The representative takes on a fiduciary responsibility to the class.

Defendants sometimes make settlement offers or offers of judgment under Federal Rule of Civil Procedure 68 to a named plaintiff in an effort to defeat a putative class action.

Competing class actions seldom result in benefits to class members as a whole. Before filing suit, class counsel should attempt to learn of any existing cases and communicate with counsel in the other cases. Class counsel should encourage joint litigation of related lawsuits, both in discovery and in settlement:

Determining best practices when there are overlapping or competing class actions presents difficult issues. When multiple class actions are pending, with different counsel, a settlement in one case may preclude continued prosecution of claims in another case. The potential for damage to class members’ interests is significant.

Coupon settlements should rarely be used.⁶⁴

The use of coupon class action settlements in which relief to class members is made in the form of coupons redeemable on future purchases from the defendant, sometimes to the exclusion of any cash to the class members, was a contentious issue in the 1990’s into the 2000’s. Their misuse, including in situations where plaintiffs’ counsel claimed entitlement to a fee for a percentage of the coupons issued (not redeemed), was one of the concerns behind the 2005 passage of the Class Action Fairness Act which, in 28 U.S.C.