Equifax data breach advertisement mock-up (Photo: Court documents)

Equifax CEO Mark Begor says he expects less than 1% of 147 million consumers whose personal information was compromised in a massive data breach will take advantage of the company's settlement of a consumer class action.

But lawyers who settled multidistrict litigation against Equifax on behalf the affected consumers are hoping for far more.

To that end, they have created a settlement notice plan, approved by Equifax with input from federal and state regulators, that intends to take advantage of modern commercial and political advertising techniques to maximize participation and make signing up for settlements easy. And they have recruited President Barack Obama's 2012 campaign manager, Jim Messina, and his partner, Cincinnati lawyer Matt Garretson— former CEO of the Garretson Resolution Group—to do it.

Garretson's firm handled some of the nation's most significant legal settlements, including those involving the World Trade Center disaster site, the BP Deepwater Horizon oil spill, the ConAgra peanut butter E. coli litigation, and sex abuse by priests at several Roman Catholic archdioceses.

Messina has been widely credited with pairing databases with cutting-edge social media and marketing techniques to rally voters to the polls in Obama's two presidential campaigns.

The two men are co-founders of Signal Interactive Media, which has been retained to handle the class notification.

“To our knowledge, it is an unprecedented, first-of-its-kind, unique program in class action litigation,” said Ken Canfield, a partner at Atlanta's Doffermyre Shields Canfield & Knowles who is co-lead counsel for the consumer class. “It does little good to have a settlement that provides significant benefits for a class if they don't know about the settlement or it isn't made easy for them to claim the benefits that are available.”

“We expect that the Signal notice program will set a new standard for how class members are informed about class action settlements in the future,” he said. “We are also excited to see how effective it will be in encouraging class members to participate in filing claims.”

Messina, who is also CEO of The Messina Group with offices in Washington, D.C., San Francisco and London, said friends on the bench have told him they were disappointed that class action notices are often not relevant to the way people process information today.

Messina said that, eventually, he began brainstorming with Garretson. “If we were going to reach some of the classes, we were going to do it in a very different way.”

Messina said the planned online component in the Equifax settlement “can drastically expand the reach of the notice and do it much cheaper.”

“We can actually prove reach,” he explained. “That's never been done in a case this big. We think it makes a tremendous amount of sense. … Both sides agreed with us and made this so.”

Chief Judge Thomas Thrash Jr. of the U.S. District Court for the Northern District of Georgia approved the negotiated settlement on Monday to protect consumers from the consequences of having their personal and financial data exposed.

Equifax has agreed to pay at least $1.38 billion to settle the consumer case, including a commitment to spend $1 billion on cybersecurity measures over the next five years that would make the vast trove of consumer data the Atlanta-based credit reporting agency houses less vulnerable. It also establishes a $380.5 million fund to pay for at least four years of free credit monitoring and financial help, where needed, in resolving identity theft issues for victimized consumers. Experian will handle those credit protection services.

Equifax also has committed to expand the fund by at least another $125 million for excess out-of-pocket losses by consumers and potentially make available as much as $2 billion more if all 147 million consumers sign on, according to the terms. Begor said there is no cap on the settlement fund.

A team of King & Spalding attorneys led by partners Phyllis Sumner and David Balser represent Equifax. Balser said they could not comment on the settlement agreement.

Canfield said the Equifax notice plan upends what was traditionally a single mailed notification to class members who likely did not participate and may not even have been aware of class action litigation on their behalf. Class notices were frequently discarded as junk mail, he said.

As described in the settlement agreement, the Equifax class notice process encompasses an aggressive digital and social media campaign designed to reach 90% of the class.

The social media campaign includes using Facebook, Google, Twitter, Instagram, Yahoo and Bing and will be coupled with traditional radio, newspaper and digital advertising throughout an extended seven-year claims period.

Proposed emails and advertisements will also be tested for effectiveness by using focus groups and national surveys of likely class members as well as impact sampling on small subsets of the class, according to the settlement agreement.

Once the campaign is launched, Signal will use available empirical data about the campaign's effectiveness to adjust ads and their placement in order to maximize their impact.

A settlement website currently in the works will be optimized for use on mobile devices, personal computers and through email. Filing claims and checking on their status also can be done electronically.

“What is unique about this program is the extent to which you are applying modern advertising techniques that have been developed by big corporations and are used in the political realm to develop messaging that is tested and targeted to reach people where they are most likely to be engaged,” Canfield said. “That hasn't been done.”

“I am personally unaware of any case in which focus groups and an opinion survey have been used by the notice provider to make class action notices more effective,” he added.

Canfield also said that class counsel “did not want to offer every class member the right to get credit monitoring if, in fact, we couldn't deliver. If there was a capped fund that would be used to pay credit monitoring, we would not have been able to deliver on our promise that everyone who wants it could get credit monitoring, all 147 million class members. … The point is to ensure that every class member has an opportunity to participate in these benefits we worked so hard to get for them.”