Introduction

Imagine that a court allows a social media site and its users to settle a suit about whether the site improperly tracked its users’ online behavior.1 As part of approving the settlement, the court requires the parties to publish notice in the print editions of The New York Times and The Wall Street Journal. Several months after the court approves the settlement, an individual user of the site, unaware of the settled class action, brings her own claim against the social media site. Unfortunately, this plaintiff reads only New York Times articles that her colleagues post on Facebook and Wall Street Journal articles that her friends retweet on Twitter, so she never saw the parties’ print ads. The court now must decide whether the parties complied with Federal Rule of Civil Procedure (FRCP) 23, which governs class action notice. If the court holds that publishing print ads in two nationwide newspapers satisfies FRCP 23 because “that’s the way it has always been done,”2 then the parties’ settlement binds this plaintiff. If, on the other hand, the court decides that FRCP 23 requires the parties to publish notice using new forms of technology—even if such notice reaches individuals outside the class—then the plaintiff can still pursue her claim.3

Because an individual has a property interest in her right to bring a claim,4 the Fifth and Fourteenth Amendments prevent the government from disposing of her suit without due process.5 But, because parties often cannot notify—or even identify—each member of a class, courts must weigh the trade-off between providing notice on the one hand and moving forward with litigation on the other.6 To that end, Mullane v Central Hanover Bank & Trust Co7 (which establishes the relationship between notice and due process8) and FRCP 23 allow courts and parties to consider the facts and circumstances of the class action when crafting their notice plans. FRCP 23 requires parties to provide “the best notice that is practicable” to class members.9 This includes contacting any individual “members who can be identified through reasonable effort.”10 Otherwise, parties may meet FRCP 23’s requirement by publishing notice in a form that “is not substantially less likely to bring home notice than other of the feasible and customary substitutes.”11

Traditionally, parties complied with FRCP 23’s publication notice requirement by running newspaper advertisements.12 As new technologies allowed parties to publish notice using other “feasible and customary substitutes,”13 however, courts determined whether the rule required parties to do more to provide adequate publication notice.14 Most recently, courts have addressed whether FRCP 23 allows—or even requires—parties to publish notice using the Internet and social media. Many notice plans now include a social media component,15 and most courts allow parties to provide publication notice using targeted social media banner ads.16 In contrast, courts only sometimes allow or compel parties to provide native or integrated social media notice17 by, for example, posting information to their Facebook pages to cause fans or followers to receive updates18 or purchasing an ad integrated into a user’s Dashboard on Tumblr.19

Taken together, these decisions raise questions about how courts do and should weigh the costs of over- and underinclusive FRCP 23 publication notice, creating uncertainty for litigants who propose novel notice plans and for courts faced with new technologies. For example, current case law fails to systematically explain why courts allow parties to publish notice on Facebook using targeted banner ads, but courts sometimes prevent parties from updating their Facebook pages to notify class members using native social media ads. Similarly, these decisions do little to help litigants predict why courts prohibit some parties from publishing notice using native social media ads, but allow other litigants to publish native social media notice by sending Facebook notifications to their fans. More generally, existing cases fail to explain how courts evaluate whether the new forms of publication notice satisfy FRCP 23. As courts evaluate more social media notice plans, litigants need to know when courts will allow parties to publish notice using new technologies and when they will not.20

This Comment answers these questions—and in so doing, provides guidance to future litigants and courts trying to decide whether a new form of publication notice satisfies FRCP 23—by developing, testing, and applying a predictive model of when courts will and should decide that publication notice ensures due process.21 Part I explains FRCP 23’s notice requirements and introduces both Mullane’s two-pronged notice test and the Mathews v Eldridge22 balancing equation. Part I also compares Mullane and Mathews and argues that even after the Supreme Court’s decision in Dusenbery v United States,23 courts can, must, and do balance the costs of over- and underinclusive notice. Part II analyzes past decisions to model how courts balance the costs of over- and underinclusion. Based on how courts already think about publication notice, Part II builds a predictive model and hypothesizes that courts implicitly use that model to weigh the costs of over- and underinclusive publication notice. Part III first provides an overview of social media, differentiates between traditional banner advertisements and native social media ads, and uses existing cases involving social media publication notice to identify several puzzling results. To evaluate this Comment’s hypothesis, Part III then tests whether this Comment’s predictive model reconciles or explains such cases. Because this Comment’s balancing equation successfully explains past decisions, Part IV uses the balancing equation to make predictions and normative claims about how courts will and should decide whether to approve future publication notice plans.

  • 1. This hypothetical draws on the facts of Lane v Facebook, Inc, 696 F3d 811, 816–18 (9th Cir 2012), and the procedural posture of Hecht v United Collection Bureau, Inc, 691 F3d 218, 220–21 (2d Cir 2012).
  • 2. In re Scotts EZ Seed Litigation, 2015 WL 5502053, *2 (SDNY) (critiquing the defendants’ argument that the court should require newspaper publication).
  • 3. See Hecht, 691 F3d at 224–25 (finding that the plaintiff was not bound by the settlement because mere newspaper announcement did not meet due process requirements, and adopting the argument that “the defendant could have also undertaken a more extensive notification campaign—including electronic media”).
  • 4. Phillips Petroleum Co v Shutts, 472 US 797, 807 (1985) (“[A] chose in action is a constitutionally recognized property interest.”). See also Martin H. Redish and Nathan D. Larsen, Class Actions, Litigant Autonomy, and the Foundations of Procedural Due Process, 95 Cal L Rev 1573, 1589–90 (2007) (“A legal claim has long been recognized as a form of property.”).
  • 5. US Const Amend V; US Const Amend XIV, § 1.
  • 6. See Hansberry v Lee, 311 US 32, 41–42 (1940) (noting that actual notice for all class members is impracticable and restricting due process violations to cases in which notice procedures do not “fairly insure[ ] the protection of the interests of absent parties”).
  • 7. 339 US 306 (1950).
  • 8. See id at 314.
  • 9. FRCP 23(c)(2)(B).
  • 10. FRCP 23(c)(2)(B).
  • 11. Mullane, 339 US at 315.
  • 12. See id at 309–10 (describing the newspaper publication strategy utilized by the defendant in the case); Mirfasihi v Fleet Mortgage Corp, 356 F3d 781, 786 (7th Cir 2004) (“When individual notice is infeasible, notice by publication in a newspaper of national circulation . . . is an acceptable substitute.”).
  • 13. Mullane, 339 US at 315.
  • 14. See, for example, Baidoo v Blood–Dzraku, 5 NYS3d 709, 715 (NY Sup 2015) (arguing that, in the context of service of process, publication notice “is almost guaranteed not to provide a defendant with notice of the action”); Mirfasihi, 356 F3d at 786 (“[I]n this age of electronic communications, newspaper notice alone is not always an adequate alternative to individual notice.”); In re “Agent Orange” Product Liability Litigation, 818 F2d 145, 167–68 (2d Cir 1987) (discussing additional forms of substitute notice, including advertisements on radio and television). For examples of commentators arguing that, in light of new technologies, courts should reconsider whether newspaper publication satisfies FRCP 23’s “best notice that is practicable” standard, see Jennifer Lee Case, Note, Extra! Read All about It: Why Notice by Newspaper Publication Fails to Meet Mullane’s Desire-to-Inform Standard and How Modern Technology Provides a Viable Alternative, 45 Ga L Rev 1095, 1118–24 (2011) (suggesting that due to population mobility, declining newspaper readership, and increasing internet usage, newspapers no longer provide constitutionally adequate methods of notice); Jordan S. Ginsberg, Comment, Class Action Notice: The Internet’s Time Has Come, 2003 U Chi Legal F 739, 753 (“Courts mistakenly assume . . . that print media publication is the most accessible, fair, and efficient means of appealing to a large group of geographically diverse individuals.”); Brian Walters, “Best Notice Practicable” in the Twenty-First Century, 7 UCLA J L & Tech *1, 7–16 (2003), archived at http://perma.cc/TJ4L-5AR4 (arguing that the Internet, not newspapers, provides the “best notice practicable”).
  • 15. See Erin Coe, Social Media Class Notices Gain Traction but Carry Risks (Law360, Apr 24, 2015), archived at http://perma.cc/JKZ6-DHGG (reporting an estimate that 15 percent to 20 percent of current class action settlements include a “social media or digital notice component”).
  • 16. Traditional banner advertisements typically appear in standard-sized rectangles located above the main body of a website. All users see the same banner advertisements. Targeted banner ads rely on “a vast infrastructure designed to track [users’] movements across the web to improve the effectiveness of ads.” Farhad Manjoo, Fall of the Banner Ad: The Monster That Swallowed the Web (NY Times, Nov 5, 2014), online at http://
    nytimes.com/2014/11/06/technology/personaltech/banner-ads-the-monsters-that-swallowed
    -the-web.html (visited Oct 11, 2016) (Perma archive unavailable).
  • 17. In contrast to banner ads, which are distinct from the website’s body and content, integrated or native social media advertisements appear “seamlessly” on social media websites alongside stories about a user’s “friends, family and the things they care about.” How People See Ads (Facebook), archived at http://perma.cc/5KGK-SZHX. See also Native Advertising: A Guide for Businesses (FTC, Dec 2015), archived at http://perma.cc/CRU4
    -QURX (defining native advertising as “content that bears a similarity to the news, feature articles, product reviews, entertainment, and other material that surrounds it online,” and providing guidance for when businesses should disclose that integrated content is native advertising); Tony Hallett, What Is Native Advertising Anyway? (The Guardian), archived at http://perma.cc/GL2N-2P6N (“The difference between display ads online . . . and native ads is that the latter are in the flow of editorial content.”).
  • 18. See Marketing on Facebook Starts with a Page (Facebook), archived at http://perma.cc/J247-A7A4 (describing how businesses can promote content so that customers see the information in their “News Feed—the constantly updating list of stories on Facebook”).
  • 19. See Hello, Brands. (Tumblr), archived at http://perma.cc/WU5S-J3BF (describing how companies can create sponsored posts targeted to appear to specific demographics of users). For examples of how courts have decided cases involving native social media notice, see Part III.B.2.
  • 20. See April 2015: Class Action Litigation Update (Quinn Emanuel Urquhart & Sullivan, LLP), archived at http://perma.cc/6TVJ-T3T9 (“As the number of social networking sites and users continues to grow, we expect courts to further develop additional innovations and parameters for the role of social media in Rule 23.”).
  • 21. The methodology borrows from and loosely follows the use of in-sample and out-of-sample data in predictive modeling. See generally Peter Reinhard Hansen and Allan Timmermann, Choice of Sample Split in Out-of-Sample Forecast Evaluation (Feb 7, 2012), archived at http://perma.cc/25HJ-K8PA. The Comment builds a model using cases that do not involve native social media ads, then tests the model using a different, out-of-sample set of native social media cases.
  • 22. 424 US 319 (1976).
  • 23. 534 US 161 (2002).