Jury Still Out on Email Notification of a Class Action

Under Rule 23, individual notice in class action cases has been required as the best notice practicable under the circumstances since 1974. Although notice has been traditionally made via first-class mail, email notification is becoming increasingly common as a secondary notification method. Courts remain conflicted about it, but tend to agree that, when possible, direct mail should be used. However, when physical addresses are not available or when other case-specific circumstances warrant, email has been upheld as a defensible alternative when carried out correctly. In most cases, email is a lower-cost option, but it’s necessary to choose the most effective notification method or combination of methods to reach the largest num-ber of potential class members.

Email notice presents unique challenges. Data files typically contain large numbers of records that cannot be sent because of incomplete or obviously fabricated addresses. Careful attention must be paid to how the email is formatted in order to avoid rejection as spam. Important dates and deadlines should be bolded in the body text, and the subject line should be short and clear. The notice should feature a prominent link to the settlement website.

Notify Internet service providers in advance of any mass emailing. This lets providers review the email content in advance and configure their filters to not reject it. Even then, the emails will likely need to be sent on a rolling basis over several days or even weeks to avoid the spam tag.