Rule 23(c)(2)(B): Notice Requirements for Rule 23(b)(3) Class Actions

Federal Rule of Civil Procedure 23(c)(2)(B) governs notice to classes certified under Rule 23(b)(3). It also applies when a court orders notice under Rule 23(e)(1) to a class proposed to be certified for settlement purposes under Rule 23(b)(3).

The rule is intended to give class members meaningful information about the action, their right to request exclusion, and the consequences of remaining in the class.

The “Best Notice Practicable” Standard

For a Rule 23(b)(3) class, the court must direct “the best notice that is practicable under the circumstances.” That notice must include individual notice to every class member who can be identified through reasonable effort.

Rule 23(c)(2)(B) permits notice through one or more of the following:

United States mail;
Electronic means; or
Other appropriate means.

The rule does not establish one preferred delivery method for every case. According to the 2018 committee notes, courts and counsel should consider the method or combination of methods most likely to be effective for the particular class.

Mail may be appropriate in some cases. In others, email or another court-approved electronic method may provide an effective primary or supplemental channel. The selection should account for the available contact information, the class members’ likely access to the proposed communication channels, and the strengths and limitations of the technology.

Required Contents of a Rule 23(c)(2)(B) Notice

The notice must clearly and concisely state, in plain and easily understood language:

The nature of the action;
The definition of the class certified;
The class claims, issues, or defenses;
That a class member may enter an appearance through an attorney if the member wishes;
That the court will exclude from the class any member who requests exclusion;
The time and manner for requesting exclusion; and
The binding effect of a class judgment on members under Rule 23(c)(3).

These are the subjects expressly required by Rule 23(c)(2)(B). The notice must communicate them accurately without unnecessary legal terminology or procedural complexity.

Settlement Notices and Rule 23(e)

In a proposed Rule 23(b)(3) settlement, notice is commonly provided under both Rule 23(e)(1) and Rule 23(c)(2)(B). The 2018 committee notes expressly recognize this combined-notice practice.

A settlement notice may also need to explain matters such as:

The material terms of the proposed settlement;
The relief or benefits available to class members;
Any claim-submission requirements;
The right and procedure to object;
Applicable exclusion, objection, and claim deadlines;
The requested attorneys’ fees and expenses;
The consequences of participating, objecting, requesting exclusion, or taking no action; and
The date and purpose of the final approval hearing.

The necessary content depends on the settlement, the court’s orders, and other applicable legal requirements. Before directing notice under Rule 23(e)(1), the court must determine that notice is justified under the standards stated in that rule.

Plain Language and Notice Design

Rule 23(c)(2)(B) requires notice to be clear, concise, and written in plain, easily understood language.

The 2018 committee notes emphasize that notice methods, content, and format should be appropriate for the class receiving the notice. A notice prepared for a sophisticated securities class, for example, may differ substantially from one intended for consumers, employees, patients, or people with limited internet access.

Effective notice design may include:

Descriptive headings and a logical reading order;
Short sentences and familiar terminology;
Prominent deadlines and action instructions;
Readable typography and spacing;
Consistent information across notices, websites, and claim forms;
Accessible formats; and
Translations when appropriate for the class.

These design practices are not a substitute for the rule’s required content. They help make that content understandable and usable.

Individual Notice and Reasonable Effort

Rule 23(c)(2)(B) requires individual notice to all class members who can be identified through reasonable effort. What constitutes reasonable effort depends on the circumstances and is ultimately subject to the court’s determination.

A notice administrator’s implementation process should include:

Reviewing and standardizing class-member data;
Identifying duplicate or incomplete records;
Updating or validating available contact information;
Monitoring returned mail and bounced electronic messages;
Carrying out court-approved follow-up procedures;
Recording delivery and response information; and
Preparing implementation reports or declarations.

These are recommended notice-administration practices rather than requirements separately stated in Rule 23(c)(2)(B). They can help counsel and the notice administrator implement the approved plan and document the efforts made to reach the class.

Electronic Notice, Email, and Text Messaging

The rule expressly permits notice by “electronic means.” Depending on the circumstances and the court-approved notice plan, electronic notice may include email and potentially text messaging or other appropriate electronic communications.

Electronic channels can support:

Prompt distribution;
Outreach to large classes;
Delivery and engagement reporting;
Reminders before court-approved deadlines;
Direct access to settlement documents and claim forms; and
Supplemental outreach after an unsuccessful initial delivery attempt.

The suitability of any particular electronic method depends on the class, the reliability of the contact data, the proposed message, privacy and security considerations, and court approval. Electronic notice does not eliminate the obligation to provide the best practicable notice under the circumstances.

Developing and Documenting the Notice Plan

A proposed notice plan should be tailored to the case. Relevant considerations may include:

The size and composition of the class;
The availability and quality of class-member contact information;
The class members’ likely access to mail, email, mobile devices, and the internet;
The need for accessible or translated communications;
The timing and complexity of the exclusion or claims process;
Procedures for addressing unsuccessful deliveries; and
The evidence and reporting needed to document implementation.

The court makes the final determination regarding whether the proposed notice and delivery methods satisfy the applicable requirements.

Does Rule 23 Apply to Collective Actions?

Federal Rule of Civil Procedure 23 generally does not govern collective actions brought under §216(b) of the Fair Labor Standards Act. Rule 23(b)(3) class actions ordinarily use an opt-out procedure, while workers must affirmatively opt in to an FLSA collective action by filing written consent with the court.

Courts may facilitate or supervise notice to workers who may be similarly situated, but Rule 23(c)(2)(B) does not establish the requirements for that notice. Different procedures may therefore apply when a case includes both an FLSA collective action and a Rule 23 class action.

Learn about FLSA §216(b) collective action notice.

Class Action Notification Services

Settlement administrators and attorneys can learn more about List Media’s class action notification services at https://list-media.com/Class-Action-Notifications.html.

List Media provides class action notification capabilities that include scalable email and SMS delivery, list verification, delivery tracking, and campaign reporting. A properly implemented notification program can help counsel and settlement administrators distribute court-approved notices, monitor delivery, protect class-member data, and document the notice process.

This page provides general information about Federal Rules of Civil Procedure 23(c)(2)(B) and 23(e). It is not legal advice, does not address every potentially applicable requirement, and does not guarantee that a particular notice plan will receive court approval.