November 30, 2015 Articles

Notice of Class Action Settlement: Don't Forget the Regulators

Class members are not the only parties that must be notified.

By Robert DeWitte

The settlement of any class action in federal court can involve a complex array of administrative challenges. Notice of the settlement may go to class members in a myriad of ways, limited in their diversity only by the communication options available. Administration of the settlement beyond notice presents another set of challenges as well, from fielding class member inquiries and processing claims to ensuring the distribution of settlement awards is done with painstaking care.

But class members are not the only parties that must receive notice. Under the Class Action Fairness Act (CAFA), 28 U.S.C. § 1715, “[n]ot later than 10 days after a proposed settlement of a class action is filed in court, each defendant that is participating in the proposed settlement shall serve upon the appropriate State official of each State in which a class member resides and the appropriate Federal official, a notice of the proposed settlement[.]” Even aside from the complexity inherent in providing notice to the class, this requirement can present challenges itself and, if not handled properly, injects uncertainty into the settlement approval process.

To limit that uncertainty, four key issues merit close attention: (1) the timing of the notice; (2) the contents of the notice; (3) the “appropriate” officials to be provided with the notice; (4) and post-notification inquiries, if any.

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