Judicial Review of Settlements Under the Class Action Fairness Act and Deference Due to the Department of Justice and State Attorneys General

Abstract

The Class Action Fairness Act of 2005 (CAFA) made it easier to remove consumer class actions from state to federal court, and among other things regulates the procedure of federal court approval of settlements of those cases. CAFA requires that before any court approval or disapproval, the parties must notify the Attorney General of the United States, and the attorneys general of states where members of the class live, of the pending settlement in order to receive any objections or other input. While such notice is frequently sent, since most class action cases settle out of court, it appears that the U.S. AG and state AGs rarely formally object to proposed settlements. Perhaps not surprisingly, the provision has been the subject of little commentary and analysis. This Article fills that gap by focusing on how state AGs process and evaluate such notices under CAFA, using as a case study over ten years’ worth of unpublished data obtained from the Ohio Attorney General, regarding the Ohio AG’s review of thousands of CAFA settlement notices. The Article also addresses whether states should also be permitted to intervene as parties in CAFA suits, and the legal and policy issues regarding how much weight or deference a federal court should give to objections or input (or lack thereof) from the DOJ and state AGs, usually through amicus curiae briefs, to proposed settlements