No Ads for the Other Side: Limits on the Nature of Notice to be Given to Class Members
Once an action has been certified as a class action, notice of certification is required to be given to the class. There are statutory requirements that govern the matters to be addressed in such notices, but the courts have responsibility for approving their form, content and distribution scheme, as well as who pays for them.
Bartram et al. v. GlaxoSmithKline Inc. et al
In a recent B.C. case, the representative plaintiffs had obtained a certification order against two GlaxoSmithKline Inc. entities in respect of an action alleging that their antidepressant drug Paxil caused cardiovascular defects in children born to women who took the drug during pregnancy, of which the defendants failed to provide adequate and timely warning. In Bartram et al., v. GlaxoSmithKline Inc. et al, 2015 BCSC 315, the court decided on the form and timing of the required notice to class members, including distribution of and payment for the notice.
The representative plaintiffs had sought approval of both a short and long form notice. The short form notice, to which the defendants objected, “shows a picture of a crying baby under the word Paxil in large type. It refers to the fact that a class action has been certified, describes the class and class period and provides contact details for the reader to obtain further information. It does not include much of the other information required by s. 19(6), such as the manner and time for members to opt in or opt out of the proceedings” and other information (para. 5). The plaintiffs proposed that the short form notice be sent to doctors’ offices with a request that it be posted in waiting rooms.
The certification judge held “the proposed short form notice resembles an advertisement for class counsel’s firm. It may be appropriate for use in that manner, but it lacks the balance and independence required of a court-mandated document. I conclude that notice will be only in the proposed long form” (para. 8).
The court went on to find that plaintiffs’ counsel and the defendants were to split the costs of notice evenly, and that there was “no basis for requiring the defendants to effectively advertise on their own website that their product, which is still properly on the market, is the subject of litigation” (para. 10). As such, even the long form was not required to be posted on the defendants’ website.
Notice of certification must be given as required by the statute. Defendants should take some comfort that class counsel may well have to contribute half the costs of the notice plan, and at the court’s confirmation that a “balanced and independent” notice:
- cannot resemble an advertisement for class counsel’s firm; and
- need not be posted on the defendant’s own website.