1. Mediasmjth
February 6, 2017
Todd B. Hilsee
Principal
The Hilsee Group LLC
154 East Atlantic Blvd
Ocean City, NJ 08226-4511
Re: Digital Advertising Class Action Notice Plan Audit and Analysis
Dear Todd:
This provides you with your requested report regarding audits of certain examples of digital
advertising based "notice plans" for the benefit of Courts overseeing class action litigation.
Credentials
I am the CEO of Mediasmith, a media planning and buying agency. 1
I have a global reputation
as an expert on digital media measurement. Prior to being involved in digital media, I had a 30-
year career in traditional media management on both coasts, working at the highest levels with
major national and global clients. I got involved in digital in the early 90's and have been
involved in advisory roles from the beginning of the commercial internet with Web Audits
(internet Profiles or I/PRO}, Third Party Ad Serving (Doubleclick}, Audience Measurement
(comScore}, the next generation of site metrics (Quantcast} and the early stages or quality
metrics (ClickFacts and DoubleVerify} as well as advisory work for the American Association of
Advertising Agencies (4As}, comScore Media Metrix, the Interactive Advertising Bureau, ad:tech
and the Online Publisher's Association. I also founded the ARF's (Advertising Research
Foundation} Digital Media Council. Today, I sit on the Global Programme Board for I-COM, the
Global Marketing Data and Measurement Summit out of Geneva, Switzerland. Because of this
work and my company Mediasmith's position in the industry, I have relationships with most
metrics companies at the C level. I authored the interactive media chapter of the textbook
Advertising Media Planning.2
In addition, I have been recognized several times by the digital
advertising industry including an Effie, several OMMAs, sfBIG's Hall of Fame, ad:tech's Industry
Achievement Award and most recently MediaPost's Digital Media All-Star. Mediasmith is a
member of the Association of National Advertisers. I hope that the perspective and knowledge
1
Mediasmith is a media planning and buying agency whose clients include Kodak, Salesforce, BJ's Restaurant and
Brewhouse, Stanford Children's Hospital and /BMC Software. Mediasmith does not operate as a notice
administrator or claims administrator in class action litigation, but Mediasmith has provided media
recommendations and media placement services to parties and administrators involved in class actions.
2
Jack Z. Scissors and Roger B. Baron, Advertising Media Planning (McGraw-Hill 7th Edition 2010}

2. base from the above experience will be useful in the goal to help courts avoid problems
evaluating media best practices in the future.
Background
Class actions affect the rights of millions of people annually who not only can benefit from the
"social justice" the device provides, but also will lose rights if left unaware and unable to act.
There is concern from analysis experts, including yourself, that in cases where individual notice
is not reasonable, media notice plans are being offered to courts which rely on electronic notice
methods but will not be as effective at reaching class members as the vendors promise.
However, to be sure there is no insider's bias, you have reached out to me as a digital media
expert who is not employed by a "notice industry" vendor.
Understanding Digital Media
Interactive or Digital Media is much more complex than traditional media. For direct mail, there
is evidence that the receipt of a notice through the mail is sufficient to provide notice to the
consumer. For a magazine, there is enough evidence the average reader is exposed to the
average page on the magazine. For television, when a spot runs on NBC Network at 8:17 at
night, every viewer of NBC is exposed to it and has the opportunity to view it. (We call this OTS
or opportunity to see). Those exposed to the content in these ads, it can be argued, "received
notice" without taking any other action.
The internet is much more complex. There is no facility for reaching 100% of a site's audience.
Even much touted "takeovers" of home pages do not reach the consumers who come in
through other means (to mail, to a store inside the site, to the sports or political section, etc.).
Each ad is served one device at a time. The industry is rife with fraud and other areas wherein
not all ads are served to or seen by consumers, but are served to machines powered by
automation referred to as "bots." And there is the complication of the media technology layer,
attempting to simplify this complex but highly measurable medium. But this sometimes
obfuscates, rather than fixes, the problem at hand. Due to space limitations in digital ads, those
exposed to digital ads and take no other action may not have "received notice." Unlike brand
advertisers, legal notices must be concerned with "click-thru" to Rule 23-compliant notices,
which on average is quite low.
To this end, accurate measurement is critical. The industry is cooperating on several issues to
codify and measure many of the variables that impact true exposure and communication. These
issues are currently housed within the MRC (Media Ratings Council) a congressionally
mandated organization that oversees the veracity of ratings and audience measurement in TV
(e.g., Nielsen ratings) and other media. The current work, administered by the MRC includes
standards in viewable impressions for various digital ad types, invalid traffic detection and
filtration standard, audience currency and attribution standard now in process, social media
metrics standard and the location based metrics standard now in public comment. On the
docket for later 2017 are engagement metrics, value of advertising, ad effectiveness and ROI
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3. metrics. I and my company Mediasmith participate regularly in discussions at conferences and
through written comments in the trade media as an active player in dialogue on these issues.
Thus, the evaluator of an internet media campaign must be more educated than that of a
traditional media campaign, and be willing to set up a broader list of parameters from which to
evaluate such campaigns. Otherwise it will continue to be easy for plans which are inadequate
to be proposed and approved but not receive the consumer engagement needed.
Definitions and Discussion of Terms
The following definitions and discussion of terms should clarify and assist the reader of this
document in understanding the technical aspects of evaluating a digital plan, proposal or
summary.
1) Unique impression
An impression is an ad which is served to a users' browser. This includes duplication as this is a
computation of impressions served on devices, not people reached. A unique impression
excludes duplicate or additional visits during the same time frame and counts every user only
once.
Source: IAB (interactive Advertising Bureau) Glossary of Interactive Advertising Terms
2) OTS
Opportunity to see an ad. This is the third level in the ARF (Advertising Research Foundation's)
Communications model, that of advertising exposure. The full model includes (in order of
communication):
Vehicle distribution
Vehicle exposure
Advertising exposure
Advertising recall
Clickthrough
Interaction
Attitude Shift
Leads
Sales
It should be pointed out that OTS or advertising exposure is not full communication of the
concept. Communication generally only happens when one of three things takes place: 1)
multiple exposures (see below), 2) special ads called "native ads" that have much more detail in
the ad than a normal banner or 3) clicking through an ad and interacting with the supporting
web site.
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4. 3) Frequency capping
Limiting the number (frequency) of impressions served to each user. This is commonly
presented as lx, 3x etc. In theory, after a third impression is served to a user when a 3x cap is
in place, all subsequent ads will be turned down by the ad server.
Issues with frequency capping:
a) the technology is set to cap frequency of a single ad or ads served for an advertiser to a
single site. The ability to frequency cap across networks or multiple sites is not currently
generally available within the ad server. If such a unique technology implementation is
proposed as a part of a campaign, more evidence needs to be presented to satisfy that
the operational and technical challenge has been somehow overcome.
b) while it is common to talk about reaching a user or visitor, in fact, the current
technology can only tell for sure if a machine or device is reached. The device could
have multiple people using it or, more typically, a person will use multiple devices
(home and office computer, laptop, tablet, cell phone or some combination). The result
is that any campaign, even if effectively frequency is capped for a single site from a
technology standpoint will reach some number of people more than once.
c) the bottom line is that a claim of frequency capping within a high reaching campaign is
erroneous or at best, highly fraught with difficulty in achieving. There will be duplication
and the resulting claimed reach goal will not generally be satisfied. More information
should be insisted upon.
4) Reach
There are two definitions of reach used in the interactive or digital media space:
a) a campaign specific definition: The number (or percentage) of different persons or
homes exposed to a specific media vehicle or schedule at least once. Usually measured
over a specific period of time (e.g., four weeks/one month). This is also known as
"cume," or the cumulative, unduplicated, net audience.
b) a site centric definition: unique users that visited the publisher or site over the course of
the reporting period, expressed as a percent of the universe for the demographic
category; also called unduplicated audience
The campaign specific definition (a, above) is the historical use of the term in advertising media
metrics (Scissors/Baron 125, FN 1). This is the only meaningful use of the term to signify
accumulated audience. The site centric definition came about in the internet era and measures
the cumulative potential of a site, not the coverage of an individual campaign. The cume
potential of a site cannot be reached by a single campaign. One would have to be on all pages,
all of the time for this to occur. Confusion between these two terms is common. But the misuse
should not be permitted as a real argument as it overstates significantly potential campaign
impact.
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5. As an example, a plan may state that Facebook will be used, and that Facebook reaches 65% of
the target audience. Later in the plan, a buy of Facebook impressions is specified. That does not
mean that 65% of the target audience will be reached. It may in fact be 5, 10 or 20% of the
target or for a very large and expensive media plan, as much as 40% of the target.
5) Effective reach
Sometimes referred to as effective frequency. The use of both terms is common, as reach and
frequency are a part of the same equation (RxF-GRPs), as in: what percentage of the target was
reached and how many times was the average person reached? Reach is an absolute (generally
demonstrated as a percentage of the target but sometimes shown in whole numbers, though
not a best practice). As frequency is an average, not all people reached will be reached with the
same frequency. There is an exposure curve. The important issue relative to effective reach is
how many people have been reached at the level of frequency that is regarded as effective.
This will be less than the total reach of the campaign. e.g., a 75% reach and a 3 frequency will
not reach 75% of the target effectively. Some will only have seen the ad once or twice when 3x
is regarded as effective frequency by most.
Studies have been performed for over 50 years on this topic. Consensus is that effective
frequency in advertising media begins at 3x; and that a single exposure to an advertisement
alone will not generally communicate to a consumer.
6) Measurement vs. targeting
Measurement is a vehicle, publisher, app, site or program centric term. Measurement is
important to be able to know the various demographic and other aspects of a vehicle's
audience, so that the media planner and buyer can make objective decisions on where to
advertise. The audience of a specific campaign will be different from the total audience of the
vehicle based on where those exposed to a campaign experienced it. For example, not
everyone who watches 60 Minutes on CBS view the CBS Evening News. In fact, the
demographics at the end of a show are commonly different than those at the start. The same is
true for the internet. People who go to Yahoo! Mail are not the same as those on Yahoo!
Sports, etc.
Targeting is finding those determined to be in the optimal or target audience for the campaign
within various media vehicles. Targeting on the internet is generally not as accurate as would
be hoped for. Most targeting is done via third party sources and their data is not 100%
accurate. For example, http://www.bluekai.com/registry/ will tell you what Oracle's BlueKai, a
leading targeting engine, thinks they know about you. BlueKai incorrectly believes I am a female
working in human resources, between the age of 46 and 50.
Some sites can target better than others as their data is more accurate. For example: People
are not likely to misstate their company or actual job on LinkedIN as any lack of truth would be
quickly found out. However, it may be common for the same individual to embellish the facts
on an online dating site.
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6. First-party targeting is being pursued by many established advertisers. Through registration,
credit card info, and other means, established advertisers can know much about their own
consumers and target them for promotions accordingly. A first-time campaign for a class action
settlement will not have such data and targeting will need to be done by inference or use of
(less accurate) third-party data.
7) Reach calculation tools and software
In the U.S., the two most-used audience measurement sources for internet are comScore
Media Metrix and Nielsen NetRatings. Each of these services perform measurement of most
sites that one would consider for advertising. One can use software from either of these
companies to compute reach/frequency calculations of plans and buys. For this exercise, I used
comScore Media Metrix. The data will differ slightly between services.
There are also two primary database-oriented advertising software services, Telmar and IMS
(owned by Nielsen) which one can use to compute R/F. These are commonly used by media
planners and buyers who wish to do cross-media calculations. The calculations will differ
slightly between these services and the measurement source companies due to differences in
formulae for estimating reach curves, combinations of media, etc.
8) Mixing and blending target audiences when performing reach determinations
Reach is a percentage of a target audience. It is the unique visitors exposed to a campaign
expressed as a percentage of the universe. If two different target audiences are used for
different media (e.g., Women vs. Adults with a home building DIY project) they will have
different universes, different denominators and cannot readily be combined, using common
reach and frequency calculation methods. The media planner or buyer must either revert to the
lowest common denominator (the most general) or perform sophisticated analysis to translate
the more general target to a strategic target on a vehicle-by-vehicle basis. The latter method is
not commonly performed and if done, is something that should be transparent and revealed in
the plan metrics and calculations.
9) Viewable Browser Space
The MRC3
defines "viewable browser space" thusly: "Advertisements and content associated
with each page load can appear either within or outside the viewable space of the browser on a
user's screen-Le., that part of the page within the browser that a user can see."
Reasons for the viewer not seeing it are many, including scrolling off of the part of the page
that the ad is on, the ad being below or to the right, left, top or bottom of the area of the
screen viewed, user browser definition (setting the screen so that the whole page is not seen),
occlusion from another application on screen, etc.
3
Media Ratings Council.
http://www.mediaratingcouncil.org/081815%20Viewable%20Ad%20lmpression%20Guideline v2.0 Final.pdf
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7. 10) Viewable Ad Impression
The MRC states: A served ad impression can be classified as a viewable impression if the ad was
contained in the viewable space of the browser window, on an in-focus browser tab, based on
pre-established criteria such as the percent of ad pixels within the viewable space and the
length of time the ad is in the viewable space of the browser. It is recognized that an
"opportunity to see" the ad exists with a viewable ad impression, which may or may not be the
case with a served ad impression.
Viewable Display Ad Impressions are counted when the following criteria are met:
Pixel Requirement: Greater than or equal to 50% of the pixels in the advertisement were
on an in-focus browser tab on the viewable space of the browser page, and
Time Requirement: The time the pixel requirement is met was greater than or equal to
one continuous second, post ad render
It is now standard practice that only viewable adds should be paid for. While many sites offer
this as a part of the package, more do not. Thus, there is a very robust market to deploy
systems which detect whether an ad is viewable or not. This will reduce total impressions by
30-50% or more, especially when activity is purchased by networks, trading desks and demand-
side platforms through exchanges.
11) Ad fraud and non-human exposure
This is referred to as Invalid Traffic (IVT). The MRC defines IVT thusly: "Among the reasons why
ad traffic may be deemed invalid is it is a result of non-human traffic (spiders, bots, etc.), or
activity designed to produce fraudulent traffic." Per the Association of National Advertisers, "In
2015, advertisers had a range of bot percentages varying from 3 to 37 percent, compared to a 2
to 22 percent in 2014."
There is a process for auditing and accrediting an ad server or other impression counting
system by the MRC. The majority today are either non-compliant or self-accredited with no
verification. Fraud is another issue that is important to filter for. If no filtration is indicated,
(which represents a separate cost), the effective audience will be overstated.
12) Cross device limitations
It is common for the measurement systems in place today to track devices, not people. While it
is common for this document and others to refer to people, users, visitors, etc., privacy
concerns generally result in us making assumptions about the person on the device. This is
made more complex when trying to measure a person's activity across multiple devices. As
stated above, a person will use multiple devices (home and office computer, laptop, tablet, cell
phone or some combination). There are many efforts in place globally to resolve the tracking of
people across devices, most significantly at I-COM (the Global Metrics and Measurement
Conference), where I sit on the Global Programme Board. To date, no company has come up
with an attribution process that will (legally and accurately) track individuals across devices. In
fact, the standard for attribution is still in the works by the MRC (see above). The primary
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8. purpose of this effort is to be able to ascertain what credit should be given to various consumer
touch points that resulted in a sale.
The result of this is that there is duplication in ANY attempt to frequency cap or reach unique
users. While the reach and frequency systems attempt to allow for this, these are formulaic
efforts that are limited by the lack of underlying data quality.
AUDIT OF SELECTED CLASS ACTION NOTICE CAMPAIGNS
High level findings
Five cases were provided for evaluation in this project. Some commonalities occur across most
of these cases. The commonalities include:
1) It appears that many cases use an older R/F calculation method wherein the wrong
denominator, that of internet population (reflecting actual penetration of the medium)
rather than Total U.S. population, is used. This produces an inflated reach number. The
total U.S. population of the target must be used as the denominator so that the math
produces a number (reach is a percentage of the denominator) that can be
mathematically combined with other media, also based on total U.S. population (or TV
Population which is virtually the same. Incorrect use of a population denominator
inflates all data by 31%.
2) Few if any cases deal with viewability. Impressionsthat are not filtered for viewability
have a 30-50% chance of not being seen. This is more complex than "above the fold".
3) Frequency capping across multiple sites is a canard. It cannot be done with current tech
and without site agreements to give back impressions. If some company has a
proprietary way to do this, it should not be a black box. It either needs to be audited and
certified by the MRC (the commonly accepted industry method for acceptance of a new
counting method) or at the least explained in detail.
4) Perfect targeting on the internet is not possible. e.g., if targeting women, the data is
only 75% accurate per the major data vendors.
5) An internet campaign in and of itself cannot realistically reach 80% of people. While it
varies by target, only 75-80% of people are on the internet and reachable via a banner
and text campaign. One third of these are people who only log on to their email or a
favorite site on occasion, and are very hard to reach. At most, an internet only campaign
can only reach 55-60% of a target audience, and that with very high spending levels. The
closer the reach gets to the 55-60% level, the higher the premium for each impression
and each reach point.
6) Effective communication is in question for many of the cases evaluated. As stated above
in definitions, and ad must be seen multiple times, have more extended native content
or induce a consumer to click through to a Web site for true communicationsto occur.
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9. 7) Cases do not generally present costs with their filing. This is key to evaluation of the
efficacy of a campaign. You can produce high reach with unlimited funds. Related to this
is CPM or cost-per-thousand, the standard media metric for comparing vehicles for
purchase and for actual purchase of impressions. These CPMs can vary from a low of
$30 cents -50 cents for mass volume, to a high of $10-20 for the hard to reach or highly
sought after individuals. The higher the reach goal, the more that higher priced
inventory will be needed to accomplish the goal. A buy built entirely on inventory below
$1 CPM cannot achieve high reach without high spend accompanying the buy.
8) While I am not in receipt of budgets for any of the notice plans presented to me, I have
been told anecdotally that many plans proposed are in the low 1001
s of thousands of
dollars for a total campaign. It is conceivable that the number of impressions indicated
could be purchased for that range of prices. However, purchase of high quality inventory
such as would be purchased by a major brand to either establish awareness or create
engagement would be much higher. In the attached Exhibit A, one can see that the
spend for the lesser of the top 50 brands in digital display advertising was in the range
of $2 million per month, with many much higher. These are sustaining efforts targeted
against a broad target. Many of which are very like the types of high reach, broad target
plans proposed for notice plans. In fact, it could be argued that a plan that runs for only
one month, rather than year-round and needs to establish both awareness of an issue
AND create engagement/action on the part of a consumer would cost more. In any case,
it seems that there is a drive to low ball bids and overpromise results with the methods
outlined above. From a general standpoint, the average plan is 10-20% of what should
be budgeted for a broad reaching digital campaign. This is not to suggest that a return to
only traditional media is the answer. The younger generation is almost all digital in
consumption. Thus, a media mix is crucial. But a dependency on cheap, leftover
inventory will not satisfy any knowledgeable evaluator of media plans.
9) The best (and only guaranteed) way to achieve a 75-80% reach in a campaign is a
combination of media. Internet can be extremely effective and efficient but needs print,
mail or other media in combination to reach the target.
10) Inversely, there is the growing issue, especially among younger consumers that digital
advertising, including mobile, is the only way to reach a number of them. As such, going
back to print media campaigns is not felt to be an option. We cannot turn back the clock
on the media.
11) Private networks such as "Xaxis" are unmeasured and should not be allowed to be
included without more transparency as to what the network can do and what their
specific R/F contribution is planned to be, how they achieve frequency caps, targeting,
etc. Again, MRC certification and greater transparency is needed here.
12) Audits such as Nielsen DAR or comScore VCE should be considered for every campaign.
Factors that could be provided include Demographics, viewability, digital GRPs. target
impressions, R/F actuals. Cost would be +-5%.
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10. 13) A very high percentage of data points stated in most arguments are irrelevant. This is a
common data trick. Show so much information that the lay person is impressed that you
know what you are doing.
Specific Case findings
1. Czuchai v. Conair
Background
I was provided a relevant declaration from the notice vendor. The vendor claims were as
follows:
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The Notice Program we developed utilizes a combination of paid notices in a well-read
consumer magazine (People) and on a variety of websites to reach the Class. The Notice Plan
will reach approximately 71.1% of likely Class members on average 1.2 times each."
Further, it was stated that the web banners would reach 60.8% of the target 1 time each. No
data is provided as to how this frequency capping is achieved, and is highly unlikely.
Findings
My calculations indicated that the combined media of the notice plan reach in fact is most likely
in the low SO's. internet reach is likely around 35%. It is very unlikely that 75MM impressions
produces the 61% reach stated in the plan if the planner is using the correct denominator.
internet impressions are also very likely overstated as no viewability appears to have been
considered which would lower internet and overall reach even further than the low SO's.
2. In re: Elk Cross Timbers Decking Marketing, Sales Practices And Products Liability
Litigation
Background
I was provided a relevant declaration from the notice vendor. The vendor claims were as
follows: 11
The suggested notice program combines a state-of-the-art internet banner ad notice
targeted to reach likely Class Members and traditional print publication in nationwide
publications to deliver notice to the class."
The media notice program was designed to deliver an approximate 80.8% reach with an
average frequency of 3.15 times each. This was to be done by purchasing 99,624,000 banner
impressions with a 3x frequency cap. No information is provided as to how a frequency cap was
achieved across sites which is not possible under current technologies.
Findings
The internet reach for the notice plan is significantly overstated. This is very likely a case of the
wrong denominator, using the smaller internet population rather than total U.S. There was no
assurance that all ads bought were viewable. Actual reach was, at best in the low 60's. internet
impressions are also probably overstated due to no viewability to have been considered which
would lower internet and overall reach even further than the low 60's.
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11. 3. Edwards v. National Milk Processers Federation
Background
I was provided with a relevant declaration from the notice vendor. The vendor claims were as
follows: "chosen efficient media vehicles that will reach a large percentage of class members
and provide legal notice of their rights in the litigation." Specifically, the Notice Plan relies on
the following elements:
a. Sponsored Links (search) advertising on the Google and Yahoo!/Bing networks;
b. Banner and Text Link advertising served through the Google Display Network;
c. Targeted banner advertising through the Xaxis network; 177 million gross impressions,
frequency capped at three times (3x) by IP address, resulting in 59 million impressions
to unique IP addresses to be served to adult residents in "Affected States" and the
District of Columbia.
d. Facebook Text Link and Banner Advertising; gee-targeting to the affected states and
interest targeting likely to reach dairy purchasers.
a. Twitter Promoted Tweet Campaign; gee-targeting to the affected states, interest
targeting likely to reach dairy purchasers, and handles related to the dairy industry and
dairy product influencers.
b. Case-Dedicated Website; and
c. A Party-Neutral National Press Release.
Impact claims include that the notice plan will reach at least 75% of the adult residents of the
States and the District of Columbia, and therefore the members of the plaintiff classes who
reside in those states as well. Banner impressions served to residents of the United States and
the District of Columbia will be frequency capped at 3 times per IP address, ensuring a number
of unique impressions are served in excess of 75% or more of the adult population of the States
and the District of Columbia.
Findings
Lacking in the notice plan is any disclosure of the Xaxis network, which the plan depends on
heavily. (Most of the other elements are showcase levels only, not impactful in and of
themselves). As stated above, the Xaxis network is not an audited or measured network and the
claims of frequency capping across a campaign are not believable within the bounds of current
technology.
Internet R/F against this target with these number of impressions is 56%/3.3. It is very unlikely
that 59 unique million impressions produced the 75% reach stated in the states indicated when
using the correct denominator of total U.S. population. As stated above, reaching almost a
reach level like this would involve some significant spend in high CPM impressions to achieve
the goal. Lastly, as stated above in definitions, it is virtually impossible to achieve 75% reach
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12. against this target when the online penetration of the target audience is not much greater if not
very much the same.
4. Pollard v. Remington
Background
I was provided with several relevant documents including declarations from the notice vendors.
The Notice Plan, after many apparent revisions, included Parade Magazine and other magazine
publications including Athlon Sports, Field and Stream, Guns and Ammo, American Hunter and
American Rifleman. In addition, an internet display ad campaign of 37 million impressions was
proposed.
The overall plan delivery was predicted to be 73.9% reach with a 2.96 frequency.
Findings
Total campaign reach would at best be in the low 50% range. The print campaign by itself would
reach 42% of the target per MRI.
The internet portion of this campaign is light, only reaching 16-20% of the target audience at
best. As such, the combined campaign Reach and Frequency is estimated at 52.3 Reach and 1.8
frequency.
As with other cases, the internet reach is probably overstated due to use of the wrong
denominator, that of internet population, instead of U.S. population. But it is highly unlikely
that 37 million impressions would satisfy any goal other than window dressing. A campaign of
this level is generally only used as a small test or to impress a client or someone in the approval
chain that internet is being used. internet impressions are also probably overstated as no
viewability appears to have been considered which would lower internet and overall reach.
5. Cross v. Wells Fargo
Background
I was provided the relevant declaration of the notice vendor. The Notice Plan Included
postcards to the target, reaching 80% of the target, and an effort on Facebook that combined
with the postcard would, per the vendor, accumulate to a 91% reach.
Findings
It is stated that the "postcards alone reach 80%." The internet effort is a token effort on
Facebook only, with a probable reach of 8% or a max of around 10% if they could do perfect
targeting. Their statement of 69% of the target being on Facebook is a blatant attempt to
influence the reader with a data point that is irrelevant. As stated above the reach (or
cumulative potential) of the site cannot and should not be confused with the reach of the
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13. campaign. With the low Facebook reach, it is statistically impossible for the combined reach of
the postcards and the Facebook effort to be any more than 82%, not the 91% stated.
I believe the above to be as complete as possible with the information provided.
j t~David L. Smith
CEO, Mediasmith
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14. David L. Smith CV
Personal/Contact Information
David L. Smith
1114 181h Street
San Francisco, CA 94107
Mobile 415-608-4327
Office 415-321-8887
smith@mediasmith.com
Bio
Dave Smith is an internationally recognized digital advertising and media expert, and is well-known
within the marketing community as a thoughtful, provocative, and forward-looking authority.
As a pioneer of new media application, media strategy, planning and metrics Dave has participated in
every generation of advertising technologies and is an expert on all aspects of media technology and
metrics in both the digital and traditional marketplaces.
Dave's advisory board and industry committee involvement has included key roles with the 4A's, ARF,
comScore Media Metrix, Quantcast, IAB, I-COM, ad:tech and the Online Publishers Association, where
he has worked to establish and refine standards in metrics, business practices and financial issues for
digital advertising.
Dave is consistently called upon by such publishers as an expert resource, and has been a noted
contributor to their content. Dave is also a regular speaker at various 4A's, iMedia, ad:tech, IAB, I-COM,
Digiday, MMS, Videonomics and sfBIG events.
He is on the Board of Directors for sfBIG, the Global Board for I-COM and The Board of Governors for
ad:tech.
In 2012 Dave was inducted into the sfBIG Hall of Fame in recognition of his trailblazing media career. In
2017, he received Mediapost's Online Media All-Star award. He has a number of other awards to his
name, including an Effie and the first-ever ad:tech Industry Achievement Award.
Academic Background
BA Journalism/Advertising University of Washington 1967
Career
1998-1970: Benton and Bowles, NYC: Media Planner
1970-1974: Honig-Cooper and Harrington, San Francisco: Vice President, Director of Media Planning
1974-1977: Ted Thompson and Partners, San Francisco: Partner and President
1977-1983: Mediasmith, San Francisco: Founder and President
1983-1986: David Smith Media, San Francisco: Consultant
1986-1989: Hawk Media, San Francisco: Vice President, Media Director
1989-Current: Mediasmith, Inc., San Francisco: Founder and CEO
Professional Honors and Awards
2004: Awards for Napster 2.0 campaign-Effie, 2 OMMAs, Creative Media Award
2007: ad:tech Industry Achievement Award
2012: Inducted into the sfBIG Hall of Fame

15. Speaking, authorship
1998-present: Hundreds of articles in Mediapost, iMediaConnection, Media Village, MSN, AdExchanger,
DMN, Fast Company and other web sites.
1998-present: Regular speaker in U.S. and globally for conferences such as Digitrends, iMedia, OMMA,
IAB, MMS, 4A's, ARF, Digiday, Videonomics, sfBIG, I-COM, ad:tech and corporate events
Advertising Media Planning. New York: McGraw Hill. 2010-David Smith wrote forward and Interactive
media chapter
Boards
2002-2008: Online Publisher's Association Advisory Board
2008-Present: I-COM Global Board
2013-Present: sfBIG Board of Directors
2016: Board of Governors: ad:tech
Affiliations/Memberships
4A's, sfBIG (founding member), ARF (Founded Online Media Council)
Consulting
Advisory boards including: Quantcast, DoubleVerify, comScore, Xgraph (Clearspring), Clickfacts,
Conference Hound, Dimestor·e, Martini Media, Music2Life, Rare Crowds, Screen Angels, Your Garden
Show and others
Volunteer Work
1999-2008: San Francisco Boys Chorus Board of Directors
2011-2014: Pro Bono work for Breastcancer.org
2015: Honorary Chair: Pencils For Kids Benefit
Social Media Connections
Linkedln: https://www.linkedin.com/in/mediasmith
Facebook: mediadls
Twitter: mediadls
References upon request

16. Case Documents Reviewed
1. Czuchaj, et al. v. Conair Corporation, S.D. Cal., Case No. 12-01901
• ECF No. 176-3, Filed 01/22/1 6
2. In Re: Elk Cross Timbers Decking Marketing, Sales Practices and Products Liability
Litigation, D. NJ., Case No. 15-00018
• ECF No. 109, Filed 09/16/16
3. Edwards, et al. v. National Milk Producers Federation, N.D. Cal., Case No. 11-04766
• ECF No. 428-2, Filed 08/22/16
4. Pollard v. Remington Arms Company, LLC, et al., W.D. Mo., Case No. 13-00086
• ECF No. 80-11, Filed 2/09/15
• ECF No. 86-11, Filed 04/08/15
• ECF No. 86-12, Filed 04/08/15
• ECF No. 127-1, Filed 06/10/16
• ECF No. 127-4, Filed 06/10/16
5. Cross v. Wells Fargo Bank, N.A., N.D. Ga., Case No. 15-01270
• ECF No. 45-3, Filed 08/11/16

17. Top SO Brands - Internet Display 2016 YTD
Report Type: Trend
Reported Time Period: 1/1/2016-10/31/2016
BRAND TOTAL DOLS (000) Annual Projection
Freecreditreport.com 160,142.40 192,170.88
Scottrade 124,500.10 149,400.12
American Red Cross 95,103.80 114,124.56
Lifelock Identity Theft Service 88,825.80 106,590.96
Zulily.com 83,632.50 100,359.00
Edx.org 75,516.60 90,619.92
State Farm 59,759.90 71,711.88
XFinity 55,341.60 66,409.92
TD Ameritrade Brokerage 47,881.00 57,457.20
Allstate 47,766.90 57,320.28
TD Ameritrade 45,617.00 54,740.40
ETrade 40,851.20 49,021.44
Best Buy Electronics Store 39,351.50 47,221.80
Mapquest.com Travel Service 37,750.30 45,300.36
Fidelity Investments 36,842.60 44,211.12
Capital One 36,009.70 43,211.64
SolarCity Energy Service 35,092.70 42,111.24
Liberty Mutual 34,728.20 41,673.84
Verizon Wireless 34,539.20 41,447.04
Lendingtree.com Mortgage 32,026.20 38,431.44
Wayfair.com 31,520.90 37,825.08
Merrill Edge 30,947.00 37,136.40
ShopAtHome.com 30,256.60 36,307.92
NextAdvisor.com 29,416.20 35,299.44
StyleWe Clothing Store 27,393.30 32,871.96
Toyota Rav4 Hybrid 27,250.20 32,700.24
AARP 26,823.00 32,187.60
Classmates.com 26,081.90 31,298.28
Autotrader.com 25,115.10 30,138.12
Geico 24,464.50 29,357.40
Univision Now 24,330.20 29,196.24
Walmart Discount Department Store 24,031.30 28,837.56
Microsoft Office 23,291.20 27,949.44
Planmeca Fit 22,913.80 27,496.56
Rackspace Web Hosting 22,651.90 27,182.28
Girl Rising Organization 22,504.80 27,005.76
Charles Schwab 21,577.90 25,893.48
LastPass 21,333.60 25,600.32
XFinity Xl 20,892.70 25,071.24
CreditCards.com 20,519.30 24,623.16
Tableau 20,512.40 24,614.88
Home Depot Home Center 20,471.00 24,565.20
Trump For President 19,691.20 23,629.44
Esurance 18,984.80 22,781.76
Santander Bank 18,928.00 22,713.60
Kohls Department Store 18,585.10 22,302.12
Match.com 18,436.90 22,124.28
AmpleHarvest.org 18,219.40 21,863.28
Harrys 18,088.60 21,706.32
US Department Of The Treasury 17,566.90 21,080.28
1904078.9
Copyright 2017. Kantar Media q_id: 4362625 Stradegy Online
All media markets not available for entire period