The Federal Judicial Center's "Illustrative" Forms of Class Action Notices

At the request of the Subcommittee on Class Actions of the U.S. judicial branch's Advisory Committee on the Federal Rules of Civil Procedure, the Federal Judicial Center developed illustrative notices of proposed class action certification and settlement. The securities and products liability notices deal with combined notices of class certification and settlement. The employment discrimination notices deal with a class certified for litigation and trial, not settlement. These notices are designed to illustrate how attorneys and judges might comply with a change to Federal Rule of Civil Procedure 23(c)(2)(B). The change, effective December 1, 2003, says that class action notices "must concisely and clearly state in plain, easily understood language" specific information about the nature and terms of a class action and how it might affect potential class members’ rights.

For each of three hypothetical cases (one dealing with securities law claims, one with products liability claims, and one with employment discrimination claims), we present below a long form ("Full Notice") and a one-page form ("Publication Notice"). For the securities and products liability class actions, we also include a summary statement to use on a mailing envelope ("Language for Envelope"). For the securities notices, in January 2005 we replaced the original notices with a modified notice that responds more directly to the requirements of the Private Securities Litigation Reform Act (PSLRA). The revised securities notices presented below include a new cover letter in a format designed to disclose the required PSLRA information in one short document. The product liability and employment notices have not been changed. Those forms follow:

Securities class action certification and settlement: full notice
Securities class action certification and settlement: publication notice
Securities class action certification and settlement: publication notice (Spanish-language version)
Securities class action: language for envelope
Securities class action: PSLRA cover letter

Products liability class action certification and settlement: full notice
Products liability class action certification and settlement: full notice (Spanish-language version)
Products liability class action certification and settlement: publication notice Products liability class action certification and settlement: language for envelope Employment discrimination class action certification: full notice
Employment discrimination class action certification: publication notice

Overview of methodology
We began this project by studying empirical research and commentary on the plain language drafting of legal documents. We then tested several notices from recently closed class actions by presenting them to nonlawyers, asking them to point out any unclear terms, and testing their comprehension of various subjects. Through this process, we identified areas where reader comprehension was low. We found, for example, that nonlawyers were often confused at the outset by use of the terms "class" and "class action." Combining information from the pilot test with principles gleaned from psycholinguistic research, we drafted preliminary illustrative class action notices and forms. We then asked a lawyer-linguist to evaluate them for readability and redrafted the notices in light of his suggestions.

We then tested the redrafted securities and products liability notices before focus groups composed of ordinary citizens from diverse backgrounds. This testing explored recipients' willingness to open and read a notice as well as their ability to comprehend and apply the information contained in a notice.

We tested the effectiveness of the redrafted securities notice by conducting a survey comparing the Center's redrafted illustrative plain language notice with the best comparable notice we could find from closed securities class action cases. Using objective comprehension measures, we found that participants who received the Center's plain language notice exhibited significantly higher comprehension than participants who received the comparison notice.

In August 2001, we posted to the FJC Website the yet-again redrafted securities and products liability notices and requested public comments. We subsequently revised the notices' design and wording, incorporating comments and suggestions received and using the assistance of additional experts. In November 2003 we added the employment notices.

(For more detailed information on the methodology involved in our research and drafting prior to the 2001 posting, click here)

Notes for use by attorneys and judges
We designed the illustrative notice forms posted here to demonstrate ways that clear, simple, “plain” language and design can be used when drafting class action notices. In an actual case, attorneys and judges can adapt an illustrative notice to the unique factual, legal, and procedural circumstances of their case.

For each type of illustrative notice posted here we drafted a detailed “full” notice that an attorney might mail to known class members, post to a website, or otherwise provide to class members. To encourage recipients to open a mailing, we drafted language that might be used on the outside of a mailing envelope. We also drafted a short publication notice. The products liability notice, based on a hypothetical asbestos personal-injury settlement, has two target audiences: homeowners and construction workers. Therefore, we prepared two separate publication notices, both of which are included under the heading “Products liability class action certification and settlement: publication notice.”

Effective notice to a class may require translation of the English-language notice into languages used by a substantial portion of the class members. To call attention to this need and to illustrate its form in two types of notices, we translated into Spanish the securities class action publication notice and the products liability class action full notice.

In November 2010, we added two new tools—a notice checklist and a plain language guide—to help attorneys and judges create effective notices and notice plans. We created these with assistance from Todd B. Hilsee of the Hilsee Group LLC. The checklist provides overall guidance on notice and notice plan development and provides guidance for improving class actions claims processes. A graphical plain language notice guide explains and highlights the important features of the illustrative notices. The checklist and language guide are available as one document at the link below.

Managing Class Action Litigation: A Pocket Guide for Judges, Third Edition (2010)
Notice Checklist and Plain Language Guide (2010) ("Judges' Class Action Notice and Claims Process Checklist and Plain Language Guide")
California Guidelines for Motions for Preliminary and Final Approval of Class Settlement (with comments referencing authorities) Draft, May 3, 2010

We thank all the organizations and individuals who provided us with advice and comments. We wish to specifically acknowledge the class action notice drafting, design, and communications expertise provided by Todd B. Hilsee, of The Hilsee Group, Souderton, PA, and the legal writing and plain-language expertise provided by Terri R. LeClercq, Ph.D. of the University of Texas School of Law, Austin, TX. During the rulemaking process, both made their interest in helping known to the Advisory Committee, which referred them to the Center. Their significant and extensive pro bono services have enhanced the work done for the Advisory Committee. We also acknowledge the Spanish-language expertise of Abby Dings, University of Texas, Austin, TX.