Class Action Legal Noticing via Email
-5 Challenges You Will Face and How to Overcome Them-
 

You are an email user. You receive, open and read at least some of the email that has been sent to you by parties that have your email address and consider you likely to be interested in their subject matter (you opened this e-newsletter). This puts you in good company. According to data from Media Mark Research, there are over 123,000,000 email users in the United States. Even so, email still is an emerging method for delivering notice of pending litigation or settlement.

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When issuing notice of class certification and/or settlement, email certainly presents an attractive alternative to first class mail with its rising printing and postage costs. And increasingly, defendants collect and maintain client, employee and customer data that includes email addresses. But actually using email to send notice to large and diverse classes can present challenges. Without proper planning and execution, the adequacy of a notice program can be threatened.

Epiq has identified the 5 biggest challenges and ways to overcome them. Email is not always an option for delivering notice, but when it is, it must be managed correctly and with caution.
 

Challenge 1
The Data
When discussing a direct notice program with a client, the first question we ask is, “What is the quality of the data?” While initial responses may be “Great!”, problems frequently emerge after more careful inspection. This is particularly true with email address data, which often relies on submitted warranty cards, submissions on websites or addresses collected by call centers. Many of the email files we see contain many incomplete or obviously fabricated address records. A recent case included several records with expletives embedded in the address. Before expressing a reliance on email as the direct notice method (say, in the Settlement Agreement) it will be extremely important to have an experienced party review the email database and parse out all invalid addresses. This will give the settling parties a clearer picture on what percentage of the class might be reachable through email.
 

Challenge 2
Notice Design
Once the data file is appropriately culled, the next step is the design of a notice that will be accepted by email servers and not rejected as spam. This is crucial. Notices sent in HTML format frequently bounce back. The same is true for attachments. Recent versions of Outlook and other email programs can be configured to reject emails like these from unknown sources, or divert them into junk mail boxes. The best option is a text format (words only) crafted like a good summary publication notice – only shorter if possible. Fewer words mean less data for transmission, which speeds up the delivery process. Also, server providers like Yahoo! or Hotmail are less likely to flag a mass emailing as spam if the content of each email is kept to a minimum.

Our recommendation is to craft a short explanatory message (no more than 100-150 words), including important dates and deadlines. A link to the settlement website should be featured prominently, and recipients should be strongly encouraged to click through for more detailed information. Also, a brief statement allowing users to send an email to unsubscribe from further transmissions must be included. The absence of this option increases the likelihood of a service provider flagging the notice as spam.
 

Challenge 3
Scheduling and Delivery
The next step is ensuring sufficient time for delivery of the email broadcast. Even with an expertly formatted notice, service providers will reject huge unexpected mass emailings as spam. Executing a large email notice project takes time. Large service providers like Yahoo!, AOL and MSN must be notified in advance of the planned emailing. Called “whitelisting”, this key step lets the providers review the email content in advance and configure their filters to not reject it. Even with this step, large volumes must be staggered over days or weeks to ensure avoiding the spam tag. Failure to take these steps can be fatal. If a provider “blacklists” your domain name (the portion of the sending email address after the @) as a deliverer of spam, it can be a painful and lengthy process to remove that tag. In the interim, all emails routed through that domain name risk rejection.
 

Challenge 4
Undeliverables
After all the above steps have been taken and the notice sent, each address will fall into one of three categories:

  1. Successful Delivery (delivery notification received and confirmed),
  2. True Undeliverable (returned notification that the email account does not exist), and
  3. Server Rejected Undeliverable (full email box, problems with the receiving server, receiving server rejecting email).
     

Successful Deliveries and True Undeliverables are mostly self-explanatory. A further step can be taken with the Successful Delivery file to confirm whether or not the recipient has actually opened the email (something that obviously cannot be done with First Class Mail), though this is not frequently requested. True Undeliverables are a dead end. The address has been abandoned or never really existed. Server Rejected Undeliverables almost always merit a second or even third attempt at delivery. Server and inbox issues on the receiving end are common and often resolved after a few days. Because of the marginal cost of resending this group of undeliverables, there is no real reason not to – again after waiting several days or a week after the initial attempt. A good percentage is likely to still bounce back, but many notices will be delivered successfully on the second attempt.

Frequently, the notice program is structured so that the final undeliverable list receives the notice via First Class Mail – assuming physical addresses are available. Even a successful delivery to half of a list of class members can result in huge savings on print and postage costs.
 

Challenge 5
Streamlining the Claims Process
This final challenge is not really a challenge at all – but a real benefit of e-noticing. As stated above, the e-notice should contain a link back to a dedicated settlement website where class members can receive additional information or even file their claim. In each link, it is possible to include a personal identifier that will be recognized by the website once the class member clicks through. At a minimum this allows an administrator to log how many email notice recipients visited the website. If the site is configured to receive claims, the identifier permits the submitted claim to be matched with any personal information on record for the class member. This automation of the claim filing process can decrease the time it takes to process and approve claims and reduce costs.

Executing a legal notice program through email can be thorough, efficient and cost effective, if done correctly. The number of cases where e-notice will be appropriate is still relatively small, but it is growing. Success depends on mastering these 5 key challenges -- Epiq Systems helps client meet and successfully address each one.