The CAFA Law Blog continues its Guest Commentary Series with the second segment of “For Better or Worse: the New CAFA Notice Requirements,” by Katherine Kinsella, president of Kinsella/Novak Communications, Ltd. In this portion of the article, Ms. Kinsella discusses how to identify the appropriate federal and state officials who must now receive notice of a settlement or proposed settlement.
The Senate Judiciary Committee Report regarding CAFA provides some guidance as to the nuances of the law, such as when the Attorney General might be the appropriate federal official to receive notice. Parsing the notice requirement for state officials is more challenging, Ms. Kinsella observes, noting that satisfying the law demands researching which entity has regulatory or supervisory authority over the defendant or defendant’s business. Ms. Kinsella cautions that defendants providing notice to state officials will have to make educated judgment calls regarding which regulatory agency or entity covers the defendant or defendant’s business.
The author also points to an interesting twist to CAFA noted in the Senate Judiciary Committee Report: “Although each Defendant has the obligation to provide the required notice…the Senate Report indicates that class counsel is responsible for proving to the court that this is not possible.” She also points out another tricky aspect of CAFA: the Senate Report indicates that CAFA’s notice requirements may apply to a wider sphere of actions that resemble class litigation. Ms. Kinsella also quotes from the report: “Generally speaking, lawsuits that resemble a purported class action should be considered class actions for the purpose of applying these provisions.”
Editors’ Note: The Editors hope the readers of the CAFA Law Blog find Ms. Kinsella’s observations and musings both interesting and beneficial. We are interested in feedback from our readers and their comments about the Guest Commentary Series, and solicit articles from those interested in participating (subject, of course, to all of our standard policies regarding suitability for publication, etc.). Enjoy!