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Changing the class action notice game

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I was sitting on my comfy, Canadian-made foam couch watching TV recently when one of those obnoxious ads appeared featuring a guy talking loudly about money.

At first, I thought it was one of those cash-for-gold ads, where some weaselly guy waving dollar bills wants to buy my old jewelry.

I quickly realized it wasn’t. Rather, it starts with a yelling narrator calling out to slovenly “Johnny Boy,” who is slouching on his couch. The narrator spoke to Johnny Boy about finding loose change in his sofa. As Johnny Boy starts rifling through his cushions searching for the “gold” in his couch, the narrator starts telling him about a lawsuit.

That’s when I realized it was a class action settlement ad and it did not involve Mesothelioma. (Come on, we’ve all heard those ads, right?) Moreover, neither was the ad American. In fact, it was Canadian and it was related to the $38-million price-fixing settlement involving the polyurethane foam market.

I spent the next 30 seconds fixated on this ad, checking out the production values and information it was disseminating. I was totally tuned in. (Who says advertising doesn’t work?)

In less than 30 seconds, the Johnny Boy ad explained the essentials about the lawsuit and how it applied to certain types of furniture made between 1999 and 2012.

All I had to do was take a picture of my sofa’s label and upload it to a website to get $20. It ended with the tag line

I have had a front-row seat on the rise of law firm advertising, which was banned in Ontario until 1987.

It started with yellow pages and grew into print publications and then found a home on radio, TV and now the internet.

Much of the focus of legal ad campaigns has been personality based, with a view to hiring a specific lawyer to get you out of some type of trouble you’re in. It’s about building trust in a lawyer’s name.

That has recently morphed into law-firm-specific advertising, spurred by national law firms, which now spend big bucks annually to brand their firms in magazines, billboards, TV, radio, the Web and sponsorship.

What’s interesting about the Johnny Boy ad is that it is an evolution of legal
advertising and an example of an ad campaign designed to overcome a specific hurdle facing a practice area, which is how do plaintiff law firms find people who are entitled to share in the spoils of the firm’s investment in a class action? Despite the cheesiness —which, incidentally, is why the ad is so effective — Johnny Boy raises the bar on the whole issue of notice, which is a thorn in the side of many class suits, particularly when it comes to judges. Judges want to know that plaintiffs exist and they will get the funds. When nobody comes to collect, class actions get a black eye.

In many instances, such as securities class actions and product liability claims, plaintiffs can be traced because they own shares of a stock or manufacturers know who bought their defective car.

However, when it comes to consumer class actions for things such as anti-trust breaches, which have exploded of late, it’s not always clear who is harmed.

That lack of knowing undermines confidence in class suits. This type of advertising is the perfect solution to that problem.

Vancouver litigator Reidar Mogerman, one of the lawyers involved in the foam litigation, says, “We were trying to be creative and aggressive in reaching out to the public.”

He says it can be a challenge to get “victims of wrongful conduct to come forward.”

Sure, $20 is probably not the greatest motivator, but, as Mogerman points out, it can buy a “nice bottle of wine.”

The law firms used an ad agency to come up with the slogans and copy for the ad.

It builds on an earlier settlement in the $80-million D-RAM memory case in which Mogerman was involved. The lawyers used clever advertising to notify the public in that case and had twice as many claimants come forward as the U.S. did.

He says TV advertising is more expensive than traditional notice campaigns, but it is proving far more effective. A multi-million-dollar settlement makes it possible to finance such efforts.

“You have to make [consumers] aware and make it easy [for people to claim],” Mogerman says, hence the ability to upload a photo to prove you’re part of the class action. After all, who keeps receipts from a couch they bought a decade ago?

Another goal is to “make [consumers] feel like they are part of creating fair competition or catching the bad guys,” he says.

“We need to move with the times in terms of how we reach people,” Mogerman says, so expect to see more social media usage in settlement notifications. It’s an idea whose time has come and the gauntlet has now been laid down to the plaintiff class bar to up its settlement notice game.

In the meantime, someone pass me my iPhone, there’s a bottle of wine waiting for me at the liquor store and I need to take a picture of my couch.

Jim Middlemiss is a principal at