Class Action Perspectives
Web-Based Advances in Settlement Administration
Class Member Email Notice
In less than two decades, the Internet has gone from an interesting curiosity used by relatively few people to an important—even essential part of the daily lives of a significant portion of the population. In fact, a recent survey by the Pew Internet & American Life Project states 73 percent of respondents (about 147 million adults) are Internet users, up from 66 percent in January 2005. And the share of Americans who have broad band connections at home has now reached at least 42 percent (about 84 million), up from 29 percent in January 2005.
Similarly, use of the Internet in class action settlement administration has grown from an intriguing possibility to a proven, even routine part of the process. Many administrators now regularly use the Internet to reach unidentified class members through online advertisements or email notice programs. Moreover, they host interactive sites that not only provide the text of the notice, but also include printable copies of all settlement documents, allow for online claims filing, provide detailed answers to frequently asked questions and offer a regularly updated, informative homepage to with a snapshot of the settlement’s status.
The next few issues of our monograph series will take a closer look at online applications for settlement administration. This article details the use of email for class notification—both benefits and drawbacks, and offers some common issues to consider when incorporating email into a notice program.
Email: A New Era in Class Member Notice?
At first glance, email may seem like the golden egg of class notice methods. Indeed, it is cost effective when compared to printing and postage expenses associated with a traditional mailed notice program. And email reaches a captive audience with many people checking messages throughout the day—at home, at work or just about anywhere with the proliferation of web-enabled mobile devices.
However, potential drawbacks of any email campaign are well documented. To better anticipate and overcome latent challenges of email notification, one should consider several key details: the source of email addresses, accuracy of the data and potential message delivery obstacles.
Data Source
There should exist — at minimum — an implied relationship between a sender and recipient before email is used to communicate. Mining the Internet for email addresses is generally held to be unethical, and in some cases where a message is intended for promotional purposes, the practice may even be illegal according to the CAN-SPAM Act of 2003.
For the purpose of class notification, a list of potential class member email addresses will likely be provided by plaintiff or defense counsel. This list should be comprised of recipients with whom the list originator has established a relationship—for example customers, subscribers or association members—who have agreed to be contacted by email. Counsel in the matter at hand, or their settlement administrators, would be considered business partners and therefore have implied permission to use the list for the purpose of class notification. It is a good idea to inquire about the source of email list data as a matter of course when planning a notice program.
Accuracy of Data
The accuracy of email list data will also play a major role in the effectiveness of an email notice program. Because email addresses are easily eliminated and created, they tend to have a shorter shelf life than contact details like street addresses and telephone numbers. Add to the challenge, that single email users may have different email addresses for different purposes. In fact one study conducted by America Online found that email users, on average, have three different email addresses.
To improve the likelihood of successful email communication, one must consider the nature of the relationship between a list originator and the message recipient. Email addresses for individuals who maintain close contact to the list originator are likely to be most reliable. For instance, customers who are consistently billed for a service via email are likely to provide and maintain a current email address versus someone who simply subscribes to a company’s e-newsletter.
Email addresses collected through product registration may be accurate in the short term but are prone to become outdated over the long run. And those collected as required data in online forms are particularly prone to be falsified—especially when a user does not perceive that his or her real address is necessary to in order to complete a transaction.
Message Delivery Obstacles
When it comes to flexibility with regard to delivery, email is inherently problematic. A traditional hand-delivered parcel addressed with a misspelled name or other minor inaccuracy is often likely to reach the intended recipient nevertheless because a letter carrier can interpret the discrepancy. An email address, however, must be entered entirely correct. And a hand-delivered parcel can be forwarded to a new street address, whereas a message sent to an old email address will be stopped in its tracks.
What’s more, email filtering technology designed to block unsolicited messages (SPAM) can also have the unintended side effect of blocking legitimate messages. Recipients using a workplace email address are especially vulnerable to filtering, as they often have little or no ability to control the extent to which messages are intercepted.
One may choose to execute an email campaign using their own network or work with a third party email distribution provider (addressed later in this monograph). Either way, it is crucial to have the ability to measure campaign delivery metrics such as:
- Open rates — Number or percentage of emails opened by the recipient.
- Hard bounces — Recipients who are missed because an email address is invalid (it no longer exists or was entered incorrectly).
- Soft bounces — Recipients who are missed because although their email addresses are valid, the message was blocked for some other reason.
It is important to know about messages that went unopened or undelivered when deciding how and if to approach delivery of follow-up email (or traditional mail) to reach class members who could not be contacted on the initial attempt.
Tips to Reach Class Members by Email
While there is no magic formula for reaching every potential class member by email, one can employ certain tactics to improve success:
- Avoid sending messages from an email address beginning with info@. Nondescript in nature, it is one of the most common email prefixes used to send general broadcast messages and is sure to be a red flag for email SPAM filters. Other triggers include using ALL CAPS or acronyms in “Subject” and “From” lines. Also avoid words such as free, offer or important in “Subject” lines.
- In order to process unsubscribe requests or track key statistics for your messages, consider working with a third-party email distribution service. Look for one that offers the ability to upload and manage mailing lists securely (with data encryption) and will also allow you to measure email open rates, hard and soft bounce rates and more.
- When sending a message with HTML embedded (for images and type formatting), it is a good idea to offer a text-based message option as well. HTML will often be required to track open rates, but in the rare instance where a recipient is unable to view HTML, plain text is your backup plan. Most third-party email services offer this option.
Conclusions
Class member email notice offers distinct benefits such as reach, cost effectiveness and convenience. Depending on circumstances, however, it may fall short of being an entirely reliable way in which to reach class members on its own. Pitfalls can include inaccurate email list data and the potential for bounced messages due to a host of obstacles ranging from inactive email accounts to message filtering technology.
Successful class email notice programs tend to be those where the nature of one’s relationship to class members has traditionally included frequent email communication—especially online business transactions. After the first email transmission, a follow-up email or mailed notification may enhance the reach of a campaign. Following are additional resources for information about trends or best practices in email distribution:
By David Holland, Director, Dec. 2007