In today’s world of e-mail and electronic communication, Courts are being urged to accept individual notice by e-mail instead of traditional notice by first-class mail. E-mail notice plans that include a link to a website provide fast and effective communication to class members, allow for submission of important data, and reduce costs.
So what’s holding it up? Under rule 23, individual notice in class action cases has been required as the best notice practicable under the circumstance since 1974. This was interpreted in 2009 by Ohio courts to require notice by mail to all class members whose names and last known addresses are available from a defendant’s own business records. With that as the context, notice has traditionally been given by first-class mail. In addition:
- Some concern revolves around class members receiving notices on various unauthorized Internet sites that may be copied and distorted.
- Class member database or spreadsheet data are notoriously incomplete or inaccurate.
- Email notices may be rejected as spam.
- There is a belief that using only first class mail insures the integrity of a judicially controlled communication.
Courts believe that in many cases, a combination will work. Email notification for some or all of the individuals in a class action is becoming increasingly common as a secondary notification method. For example, in a recent case the plaintiffs wanted to notify the entire class by both email and postal mail. The class consisted primarily of bank employees whose physical addresses were on record. The court ruled that the bank had to send notice by mail to its current employees, whereas email as a second mode of communication in addition to mailed notice was an acceptable notification method for former employees whose addresses on file may not have been accurate.
While a combination method is generally preferred, in In Browning v. Yahoo, Inc., the court held that the initial form of notice by e-mail was suitable. Here, the Settlement Class Member’s allegations arose from visits to the Defendant’s Internet website. The Court found that this demonstrates that the settlement class members were familiar and comfortable with email and the Internet. The Court additionally found that the email notice must provide key information, in a clear and concise form, that would reduce the chances of the emails being blocked by spam filters.
Courts still tend to agree that First Class Mail should be used when possible. However, when physical addresses are not available or when other case-specific circumstances warrant, email, when carried out correctly, has been upheld as an alternative.
Will email-only class action notification happen, and if so, when?