This past October, at the ABA National Institute on Class Actions, I had the privilege of sitting on a distinguished panel concerning the ascertainability of class actions at the class certification stage. Due to the considerable doctrinal overlap, the conversation steered toward a discussion of how best to notify unknown class members of class certification or settlement. I recommended that the Rules Committee consider using a methodology to measure the effectiveness of digital banner advertisements and to explicitly endorse the use of banner ads in notifying unknown class members. Other panelists and attendees suggested that we should instead rely exclusively on print media and direct mail, as has been the prevailing methodology. What follows are both relevant considerations and practical advice for practitioners faced with the specter of notifying class members of their rights in light of the relevant legal standards and available methods.
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