One of the mandates of the Class Action Fairness Act (CAFA) of 2005 was to provide greater visibility into settlements with the goal of generating more transparency on how these settlements affect class members, according to Kyle Bingham, Senior Director of Epiq Legal Noticing’s Media Noticing team.

As a result, CAFA requires defendants in federal class action litigation to provide information about the settlement to federal and state officials for their potential review, he said.

This requirement is about providing more visibility into these class actions so regulators can see them and understand the consequences these settlements have on class members in their jurisdiction. It also provides the opportunity for these federal and state officials to ask the settling parties questions about the settlement if they choose, he said.

CAFA notices are often sent to the U.S. attorney general and the attorneys general of the 50 states, D.C., and U.S. territories, he said. In some cases, a CAFA notice could be sent to an insurance commissioner if it’s an insurance case or the U.S. Department of Agriculture (USDA) if it’s a food case.

Bingham is responsible for mailing CAFA notices on behalf of defense attorneys who trust a third party such as Epiq to handle the matter efficiently and effectively. Epiq has an in-house print and mail team responsible for delivering tens of millions of documents annually, so overseeing CAFA mailings for clients is a natural fit.

Continuity: Deadlines haven’t changed and missing them can delay a case

In the 20 years since its passage, Bingham said the basics of a CAFA mailing haven’t changed much, and two important deadlines remain critical to their compliance.

First, the CAFA notice must be sent within 10 days of a settlement being filed.

“Not later than 10 days after a proposed settlement of a class action is filed in court,” the law states, “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…”

Second, a judge cannot provide final approval earlier than 90 days after CAFA was sent.

“An order giving final approval of a proposed settlement may not be issued earlier than 90 days after the later of the dates on which the appropriate Federal official and the appropriate State official are served with the notice required under subsection (b),” according to the statute.

Bingham said there have been instances where final approval has been significantly delayed by the judge overseeing the matter based on the CAFA notice never being sent.

“If the parties don’t do this really simple mailing at the start of the matter, at the end of the case, after all the administration’s done, after all the objections and opt-outs come in, after all the claims have come in and been counted, you’re really not going to get final approval,” Bingham said. “This doesn’t benefit anyone, including class members who will have their payments delayed.”

Evolution: Small changes make deliverability easier and protect class members’ data

Despite technological advances in communication since CAFA’s passage, notices are still delivered by the U.S. Postal Service (USPS) and/or United Parcel Service (UPS), with a few exceptions, Bingham said.

The attorneys general’s offices of Connecticut, Nevada, and New York now have a dedicated CAFA notice inbox to receive notices electronically, while other state attorneys general’s offices have a dedicated CAFA coordinator where notices can be sent directly instead of to the attorney general, though it is also still delivered by the post office.

CAFA also states that “if feasible, the names of class members who reside in each State and the estimated proportionate share of the claims of such members to the entire settlement to that State’s appropriate State official.”

Bingham said most clients have not included class member names for several years because of privacy concerns. Instead, to still be compliant, a chart is provided with anonymous data in it which includes a “reasonable estimate of the number of class members residing in each State and the estimated proportionate share of the claims of such members to the entire settlement.”

What’s in the CAFA notice?

The mailing includes a cover letter which provides information about the case, as well as specific documents required per the CAFA statute such as the complaint, amended complaint(s), the settlement agreement, and forms of notice. Sometimes other important documents are also included, such as the motion for preliminary approval or the memorandum of law in support of the preliminary approval motion.

After the client approves the contents, the documents are burned onto CDs and mailed via Priority Mail along with the cover letter to the various officials. In the end, Epiq also provides counsel with a CAFA Notice Implementation Declaration detailing Epiq’s actions with regard to the CAFA notice, which can be filed with the court as needed, he said.

Conclusion

Providing visibility into class actions helps all parties and CAFA mailings continue to play an integral role. They facilitate timely communication, keeping stakeholders informed and engaged throughout the legal process.