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Aug. 4 — A federal judge continues to have serious concerns that not nearly enough owners of a popular type of Remington rifle that is prone to accidental discharge will receive notice that they are eligible for a fix through a class settlement ( Pollard v. Remington Arms Co., W.D. Mo., No. 4:13-cv-00086, hearing 8/2/16 ).
A plan to notify the 7.5 million gun owners about the class-action settlement to replace the trigger mechanisms in their Model 700 and other rifles is likely to proceed for now, a lawyer who has represented gun owners and was present at an August 2 hearing on the deal told Bloomberg BNA.
But Judge Ortrie D. Smith of the U.S. District Court for the Western District of Missouri, who's overseeing the case, isn't granting final approval yet.
Smith put the brakes on approval in December 2015 because only 2,327 claim forms had been submitted (16 CLASS 1331, 12/11/15).
He held a hearing August 2 to discuss the notice issues and the revised notice plan that the parties proposed.
A prominent expert on class notice submitted an unusual friend-of-the-court letter July 29, only a few days before the hearing, “to alert the Court to the hidden defects that explain the original notice and claims process failure.”
The expert, Todd Hilsee, who has advised the Federal Judicial Center on class action notice, also took issue with the revised plan. The proposal “will reach as few Class members as the first campaign did,” he wrote to the court.
Hilsee took the extraordinary step of writing to the court because of the potential for injuries and deaths in the case, he said.
But the issue goes beyond this case, he argued. Problems in the notice industry “have propelled a race to the bottom in class notice effectiveness,” he said.
Attorneys for the parties didn't respond to requests for comment.
Signal Interactive Media LLC, the notice-services firm that designed the plan, according to a brief submitted by the parties, spoke to Bloomberg BNA but wasn't able to provide an official comment in time for deadline.
“Exactly what's going to happen, we don't know,” the attorney who spoke to Bloomberg BNA about the hearing said.
“The judge seemed inclined to let them go forward with the notice plan and see how many claims it generates,” he said. “He's hoping it generates enough claims for him to approve the settlement.”
Hilsee's assessment of why the original notice plan “failed” touched on many areas. Internet banners were less effective than promised, he said, even pointing to new reports that many advertising “impressions” aren't viewed by humans. Magazine advertisements didn't attract attention, he said.
Individual notice generates the most responses but wasn't used, he said. Class counsel didn't make use of the press in a newsworthy case, he said. Even the claims process presented a problem, mimicking the kind of registration gun owners resist, he said.
Local gun dealers should be involved in the repair process, he said.
The problems aren't restricted to this case, he said. “There is a lack of incentive for truly good notice among class action settling parties,” he wrote. He pointed to defense interests in lowering costs by generating fewer claims and in reducing bad publicity, and to class counsel's interests in getting the defendant to settle, avoiding the costs of trial and notice when the case isn't settled.
The court should “solicit sealed notice proposals directly from notice professionals trained in mass media for class actions and deeply experienced in the most important cases,” he said.
To contact the reporter on this story: Martina S. Barash in Washington at email@example.com
The expert's letter is available at http://www.bloomberglaw.com/public/document/Pollard_v_Remington_Arms_Company_LLC_et_al_Docket_No_413cv00086_W/5.
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